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Module 2 Hindu Intestate Succession

This document discusses intestate succession under Hindu law. Some key points: - Intestate succession refers to the devolution of property when a person dies without a will. The Hindu Succession Act of 1956 and its amendments govern intestate succession for Hindus. - Property devolves first to Class I heirs (close relatives like sons, daughters, widow) and if none, to Class II heirs (more distant relatives). Class I heirs take simultaneously while Class II heirs take by order of preference. - Representation by branches (per stirpes) and distribution per head (per capita) determine shares of heirs of predeceased relatives. Distant agnatic and cognatic heirs take according to degrees

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Mamta Navneet Saini
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119 views17 pages

Module 2 Hindu Intestate Succession

This document discusses intestate succession under Hindu law. Some key points: - Intestate succession refers to the devolution of property when a person dies without a will. The Hindu Succession Act of 1956 and its amendments govern intestate succession for Hindus. - Property devolves first to Class I heirs (close relatives like sons, daughters, widow) and if none, to Class II heirs (more distant relatives). Class I heirs take simultaneously while Class II heirs take by order of preference. - Representation by branches (per stirpes) and distribution per head (per capita) determine shares of heirs of predeceased relatives. Distant agnatic and cognatic heirs take according to degrees

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Mamta Navneet Saini
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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INTESTATE SUCCESSION

(Hindu Law)
MODULE 2

Prepared by: Ms. Nandini Biswas


Assistant Professor, UPES
INTRODUCTION

• Earlier Ancestral property could not be alienated by way of Will and


rule of survivorship prevailed.
• Survivorship abrogated by way of Sec.6(3)Hindu Succession
(Amendment) Act, 2005.
“Where a Hindu dies after the commencement of the Hindu
Succession (Amendment) Act, 2005, his interest in the property of a joint
Hindu Family governed by the Mitakshara law, shall devolve by
testamentary or intestate succession, as the case may be, under this
Act and not by survivorship,………”
Hindu Succession
• Difference in the concept of Survivorship (A.P.) and Succession (S.P)
• Succession refers to the devolution of property after the person dies.
The law of succession regulates the inheritance of a property.
• Rule of Propinquity : Proximity or nearness of blood relations
• Succession can be categorized into two kinds:
Non-Testamentary or Intestate
Succession/Inheritence:
Testamentary or Testate Succession:
Devolution of Property to the heir wherein the
Succession as per the Will (Will deed) of the deceased person dies without making the Will.
deceased. Hindu succession Act 1956 and Hindu
Succession Amendment Act 2005.
Indian Succession Act, 1925
Shariat Law
Section 8: General Rules of Succession- Male
Hindu
The property of the male Hindu dying intestate will devolve in the following manner:
• Firstly upon all heirs, being the relatives specified in Class I;
• Secondly, if there is no heir of Class I, then upon heirs being the relatives specified
in Class II;
• Thirdly, if there is no heir of any of the classes, then upon the agnates of the
deceased (Agnate are those who are related to another by blood or adoption
wholly through males, eg: SSSS,SSSD, BrS/BrD) and
• Lastly, if there is no agnate, then upon the cognates of the deceased (Cognate are
those who are related to another by blood or adoption but not wholly through
males, eg: MFS/MFD, SiS/SiD).
Note: The sex of the deceased Hindu is immaterial regarding agnate/cognate.
Agnate/Cognate could be Ascendants, Descendants, collaterals.
Class I Heir (Schedule of Hindu Succession Act 1956)
There are total 16 Heirs (earlier 12 in 1956 Act)under Class I:
1. Son
2. Daughter
3. Widow
4. Mother
5. Son of the predeceased son ( SS)
6. Daughter of Predeceased Son (SD)
7. Widow of Predeceased Son (SWi)
8. Son of predeceased daughter (DS)
9. Daughter of predeceased daughter (DD)
10. Son of Predeceased son of predeceased son (SSS)
11. Daughter of Predeceased son of predeceased son (SSD)
12. Widow of predeceased son of predeceased son ( SSWi)
13. Daughter of Predeceased daughter of Predeceased daughter (DDD)
14. Daughter of Predeceased daughter of predeceased son (SDD)
15. Daughter of predeceased son of predeceased daughter (DSD)
16. Son of Predeceased daughter of predeceased daughter (DDS)

NOTE: The Absence of SDS (son’s Daughter’s Son) and DSS (Daughters Son’s son) in Class I Heir because he is a Class II Heir
Shares of Class I heirs
The computation of the shares of heirs is to be done in accordance with
the rules laid down in Section 10 of HSA, 1956 (Section 8 and 10 read
together):
Rule 1: Sons, daughters, mother and widow of the propositus (person in
question/male hindu dying intestate) each take one share. If more than
one widow, all of them together take one share. Thus, all Class I heirs (16)
are not entitled to an equal share.

Rule 2: The sons and daughter of the intestate who are living at the time
of his death, take one share each. These children of the intestate may be
from different wives. But they will get equal shares individually.
Rule 3: Amongst the heirs of the branches of predeceased son and
predeceased daughter, the doctrine of representation applies, i.e., heirs in
each branch would take the same share their parent would have had, if alive.
Thus, the heirs would take per capita(per head) and Per stirpes (per branch)
Eg: [P]

1/4
Per Capita

1/12
Per Stirpes
Rule 4: The distribution of the share referred to in the Rule 3:

(i) Among the heirs in the branch of the pre-deceased son shall be so
made that his widow (or widows together) and the surviving sons and
daughters get equal portions;
(ii) Among the heirs in the branch of the pre-deceased daughter shall be so
made that the surviving sons and daughters get equal portions.

Class I heirs are also called Preferential or Simultaneous Heirs.


Concept: Per Capita & Per Stirpes
• Per stirpes and Per capita are the terms in the laws of succession, fixing
the shares of the beneficiaries/heirs.
• If the shares is per capita, all the heirs take equally per head (same
degree of relationship/directly). Eg: Son and daughter get ½ equally from
A dying intestate.
• If the shares is per stirpes, the heirs take shares by branch (Different
degree of relationship/Indirectly). Eg: grandchildren jointly take their
parents share.
Class II Heirs and their Shares (S.9 + S.11 HSA, 1956)

• When there is no heir of the Class I, the heirs of class II get a chance to
succeed to the property of the intestate (S.8).
• Before 2005 Amendment, there were 23 heirs in class II, four of them have
now been placed in class I. Thus, presently, the number of heirs in class II
is 19.
• Section 9 states the order of succession amongst Class II Heirs.
………. Amongst the heirs specified in the schedule, those in Class I shall take
simultaneously and to the exclusion of all other heirs; those in the first entry
in Class II shall be preferred to those in the second entry; those in the second
entry; those in the second entry shall be preferred to those in the third entry;
and so on in succession.
Class II heirs are divided into 9 categories/entries:
(Schedule of HSA, 1956)

1) Father (F)
2) Sons Daughters Son (SDS); Brother (Br), Sister(Si)
3) Daughter’s Son’s Son (DSS).
4) Brother’s Son (BrS), Brother’s Daughter (BrD); Sister’s son(SiS), Sister’s daughter (SiD)
5) Father’s Father (FF), Father’s Mother (FM) [Paternal]
6) Fathers widow (FWi); Brothers widow (BrWi)
7) Fathers brother (FBr), Fathers sister (FSi)
8) Mother’s father(MF) , Mothers Mother(MM) [Maternal]
9) Mother’s Brother(MBr), Mother’s Sister (MSi)

Note: Step Father is no heir at all


Distribution of property amongst Class II Heirs
Section 11 states that the property of an intestate shall be divided
between the heirs specified in any one entry in class II of the schedule so
that each heir in an entry share equally.

Note:
The heirs in the earlier category/entry excludes all heirs in later entries.
Therefore, the heirs have preference on the order of the entries.
All heir in one entry, take simultaneously/per capita.
However full blood is to be preferred to half blood( Hence half bloods
excluded: Section 18), Absence of former, latter succeeds.
And Half Blood preferred over uterine blood.
ILLUSTRATIONS:
1) A dies and leaves behind him his widow W, two daughters D1 and D2
and one Son S. Here, as per the Section 9 all the four heirs take
simultaneously as they are all Class I heirs. The property will therefore
be divided into 4 shares and W will take ¼ share, D1 and D2 will take ¼
share each and Son S would get ¼ share. (Per capita)

2) A dies leaving father F, Mother M, two widows W1 and W2, two


surviving sons S1 and S2, Widow S4Wi of the a predeceased son S4 of a
predeceased son S3, two Sons S5 and S6 of a predeceased Son S4,
Daughter D1, Son S7 of predeceased daughter D2, Daughter D3 of the
predeceased daughter D2.
• Here, Father being the Class II heir will be excluded by the other heirs who all belong
to Class I and take simultaneously. (S.9)
• Amongst the class I heirs, the mother M, Sons S1 and S2 and Daughter D1 shall each
take one share. (S 10 of HSA 1956, Rule 2)
• Widows W1 and W2 shall each take ½ share (both together taking one share). (S.10
of HSA 1956, Rule 1)
• Daughter’s son S7 and Daughter’s daughter D3 shall also take ½ share each (both
together taking one share). (Rule 3 of S 10)
• Great grandsons S5 and S6 and widow S4Wi of the grandson S4 shall each take 1/3 rd
share ( all three together take on share) (Rule 4 of Sec 10)
Therefore, the property of A will be divided into 7 shares:
-M, S1, S2, D1: 1/7 share each
-W1, W2, S7, D3: 1/14 share each
-S5, S6, S4Wi: 1/21 share each
-F gets no share as Class II Heir
Section 12 of HSA, 1956

• This section provides rules for fixing the order of succession among the
agnates and cognates
• Though, it does not provide the detailed order of succession but it decides
and determines a preference between two competing interests, that is the
competing heirs of different degrees:
Rule 1: Of two heirs, the one who has fewer or no degree of ascent is
preferred.
Rule 2: Where the number of degree of ascent is the same or none, that
heirs 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.
Illustrations
• A dies leaving a father’s father’s brother’s son (FFBrS) and a Father’s
Brother’s son. The latter who has two degree of ascent will exclude the
former who has three degree of ascent. FBrS.

• A dies leaving behind sister’s daughter’s daughter (SiDD) and a maternal


uncle’s son’s daughter .The former who has two degrees of descent, shall
be preferred to the latter who has three degrees of descent, the maternal
uncle being Mother’s brother. SiDD.

• A dies leaving Father’s mother’s father and Mother’s father’s father. Both
cognates take simultaneously for they have equal degrees of ascent namely
four and there are no degrees of descent.
Section 13 of HSA, 1956
• The section lays down the rules in order to determine the degree of
relationship between the intestate and his agnates and cognates. There
are three simple principles:
1) To determine the order of succession amongst the agnates and
cognates, the relationship shall be reckoned from the intestate to the
heirs in terms of degrees of ascent or degrees of descent or both, as
the case may be.
2) Degrees of ascent and degrees of descent shall be computed inclusive
of the intestate.
3) Every generation constitutes a degree either ascending or descending.

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