Succession to property of a Male dying intestate

This section propounds a new and definite scheme of succession and lays down certain rules of

succession to the property of a male Hindu who dies intestate after the commencement of the act.

The rules are pivotal and have to be read along with schedule. Certain other sections particularly

9-13 contain supplementary provisions which are not merely explanatory but also lay down

substantive rules involving legal principles.

Property

The word property under this section means all the property of the intestate inheritable under this

act.1 it includes not only his separate self acquired property but also his interest in a Mitakshara

coparcenary property in case he is survived by any of the female heirs or a daughter’s son

mentioned in class I of the schedule. It also includes property which he might have inherited

from his father or grandfather after this act came into force. It also includes agricultural land 2

subject to this, that the legislation relating to fragmentation of agricultural holdings or fixation

ceilings or the devolution of tenancy rights in respect to such holdings is not affected by anything

contained in this act. However the rules of succession do not apply to the property expressly

excluded from the act by section 5.

The four categories of heirs

Section 8 groups the heirs of a male intestate in to four categories and lays down that heritable

property first upon the heirs specified in the class I of the schedule. Under the old law in force

before 1937, simultaneous heirs of a male intestate consisted only of son, son of a predeceased

son, and the son of predeceased son of predeceased son. Thos was enlarged by Hindu Women’s

right to property act 1937, by adding three more heirs namely the widows of each named earlier.

All six heirs succeeded simultaneously and the doctrine of representation applied to their case.

1 Harmans Singh v. Tekamani Devi AIR 1990 Pat 26

2 Lakshmi Devi v. Surendra kumar AIR 1957 Ori. 1

In class I of the schedule the act enumerated 12 heirs so as to include in the new scheme of heirs

the mother and the daughter of the intestate and some more descendents, latter by reference to

the principle of representation. All these heirs inherit simultaneously. On failure of any such

heirs specified in class I the property devolves upon the enumerated heirs specified in Class II,

an heir in the first entry of the class II being preferred to the second entry and so on in

succession. If there is no heir belonging to class I or even class II the property devolves upon the

agnates (a person related to another by a relation of blood or adoption wholly through males) of

the deceased. Lastly, if there is no agnate of the deceased in existence at the time of his death the

property devolves upon his co-agnates (related by blood or adoption but not wholly through

males).

Relative by adoption

The words “…upon heirs being relatives specified in class I …of the schedule” which appear in

clauses (a) and (b) of the section 8 and class I of the schedule mentioned in those clauses do not

expressly refer to relationship by adoption nor does any relevant definition expressly refer to

such relationship.

The question whether the person who is related by adoption is or is not a heir, under class I of the

schedule must be determined by the reference to the rules if Hindu law relating to adoption, and

where the Hindu adoptions and maintenance act 1956 applies. Adoption has the effect of

transferring the adopted boy from his natural family into the adopted family. It also had the

effect of conferring upon the adoptee the same rights and privileges in the family of the adopter

as the legitimate son except in a few cases which related to the share on a partition between an

adopted and after born son.

Example: The father was taken into adoption subsequent to a daughter begotten from a subsisting

marriage. The wife died and the father remained. On the death of the adoptee (father) a question

arose as to whether the daughter was entitled to lay a claim on the property of the father which

vested in the father as a result of the adoption. It was held that the adoption of the father the birth

of the child was no bar to the child’s claim over the property. This was because the blood ties

between the father and the daughter were not severed on his adoption, and the daughter was

entitled to succeed to the property of the father owned by virtue of such adoption, she being the

class I heir of the father. The daughter and the second wife were thus entitled to succeed equally

to the estate of the adoptee.3

CLASS-I HEIRS

Clause (A) : Class I of the schedule

(1) Son

(i) Adopted son

The expression son has not been defined in the act. It includes natural son and adopted

son in accordance with the Hindu law of adoption in force at that time. The adopted son loses all

rights of a son in his natural family.

Where a son is born after he adoption to the adoptive father the adopted son is entitled to inherit

just as if he were a natural born son and now is entitled to the share as a natural born son.

(ii) Posthumous son

A son of the intestate, who was in the womb at the time of the death of the intestate

though subsequently born, is to be deemed for the purpose of succession as if born before the

death of the intestate.4

(iii) Son born after partition

When there has been a partition of the joint family property between a father and his sons

and thereafter a son is born to the father, the son will take an interest by birth in the property

obtained on partition by the father and the property will be their coparcenary property. In case of

death of the father after the commencement of the act, devolution of the father’s interest in such

coparcenary property will be governed by section 6 of the act and the succession to the fathers

separate and self acquired property will be in accoedance with rules layed down in section 8.

3 Neelavva v. Shivavva AIR 1989 Kant 45

4 Sec. 20 of Hindu succession act

(iv) Divided son

In matters of succession the act does not differentiate between a divided son and as on

who had remained joint with the father or his father and other coparceners, except in cases

falling under section 6 which relates to the undivided interest of a father in a MITAKSHARA

coparcenary.

The separate or self acquired of the property will therefore devolve by secession upon his heirs

specified in class I of the schedule including a son who had separated from the father as well as

one who had continued to remain joint with the father. Under the old law the divided son was no

entitled to claim any share in separate or self acquired property of the father whether father after

partition had continued to remain joint with his sons or where he had a son born to him after

partition and who was joint with him

(v)Illegitimate son

The illegitimate son of male Hindu who died intestate is not entitled to any share of the

inheritance not even in case of “Shudra” dying intestate after the commencement of the act. It

will be noticed that the law in respect to the illegitimate son of a ‘shudra’ to succeed his father is

now wholly changed.5

(vi) Son born of a void or voidable marriage

Section 16 of the Hindu Marriage Act, 1955 relates to the legitimacy of children in void

and voidable marriages.

Example: A and B are the father and mother of S. After the birth of S, B obtains a decree of

nullity of marriage from the court on the grounds mentioned in 5(i), 5(iv), or 5(v).

Notwithstanding the nullity of his parents’ marriage, S is entitled to succeed as a heir to the

property of his father A and mother B as if he was a child born in a lawful wedlock.The same

will be the status and right in the above case if a daughter to succeed.

(vii) Step-son

5 Daddo v. Raghunath AIR 1979 Bom 176

A step-son, that is a son of a previous marriage of the wife of the intestate, is not entitled

to succeed to the property of the step father. In this case there is no blood relationship , full half

or uterine. Where a widow or an unmarried woman adopts a child, any man whom she marries

subsequently is deemed to be the step-father of the child.6 Such a child is entitled to succeed to

the property of his mother but not his step father.

(viii) Son having physical or mental defects

Section 28 of this act qualifies every son to succeed to property he is entitled irrespective

of his physical or mental disabilities. Under the old Hindu law there were certain defects

deformities and diseases which excluded a son from being a heir. It was initially reduced to sons

who were by birth idiots or lunatics by the Hindu inheritance (removal of disabilities) act 1928

which declared so.

(2) Son of pre-deceased son

He inherits simultaneously with son and the other heirs specified in class I of the

schedule. The rules relating to the rights of son to succeed apply mutatis mutandis to the son of a

predeceased son.

(3) Widow

The widow of a male Hindu inherits simultaneously with a son, daughter and other heirs

specified in class I. She takes her share absolutely and not as a widow’s estate (s.14). if there are

more than one widow, all widows together take one share.

(4) Widow of a predeceased son

She inherits simultaneously with a son, widow and other heirs specified in class I of the

schedule. The rules relating to the right of the widow to succeed apply “mutatis mutandis” to the

widow of a predeceased son. She is however not entitled to succeed if, on the date the succession

opens she is remarried.

6 Section 14(4) of Hindu adoptions and Maintenance Act.

(5) Widow of a predeceased son of a predeceased son.

She inherits simultaneously with a son, widow and other heirs specified in class I of the

schedule. The rules relating to the right of the widow to succeed apply “mutatis mutandis” to the

widow of a predeceased son. She is however not entitled to succeed if, on the date the succession

opens she is remarried.

(6) Daughter

(i) Daughter

The daughter, whether married or unmarried, inherits simultaneously with a son, widow

and the other heirs specified in class I of the schedule. Each daughter takes one share7 that is

equal to that of the son. She takes it absolutely and not as women’s estate. 8 There is no priority

among married and unmarried daughters.9 Un-chastity of the daughter is no ground for

exclusion10

(ii) Adopted daughter

She is one of the heirs under class I as a male Hindu now under the Hindu Adoption and

Maintenance Act, section 7 can adopt a daughter.

(iii) Adopted son and adopted daughter

They can be both heir under class I simultaneously as the Hindu Adoptions and

Maintenance act, allows a male Hindu to adopted a male and a female child at the same time.

(iv) Posthumous daughter

A daughter of the intestate, who was in the womb at the time of the death of the intestate

though subsequently born, is to be deemed for the purpose of succession as if born before the

death of the intestate.

7 Section 10 r 2.

8 Section 14

9 Narani bai v. State of Harayna AIR 2004 P&H 206

10 Section 28

(v) Illegitimate daughter

The illegitimate daughter of male Hindu who died intestate is not entitled to any share of

the inheritance not even in case of “Shudra” dying intestate after the commencement of the act. It

will be noticed that the law in respect to the illegitimate daughter of a ‘shudra’ to succeed his

father is now wholly changed. She is not entitled to any share of the inheritance.

(vi) Daughter born of a void of voidable marriage

Section 16 of the Hindu Marriage Act, 1955 relates to the legitimacy of children in void

and voidable marriages.

Example: A and B are the father and mother of D. After the birth of D, B obtains a decree of

nullity of marriage from the court on the grounds mentioned in 5(i), 5(iv), or 5(v).

Notwithstanding the nullity of her parents’ marriage, D is entitled to succeed as a heir to the

property of his father A and mother B as if he was a child born in a lawful wedlock.

(vii) Daughter having physical or mental defects

Section 28 of this act qualifies every daughter to succeed to property he is entitled

irrespective of his physical or mental disabilities.

(7) Mother

She takes her share absolutely, un-chastity no bar nor I divorce or remarriage, and

inherits simultaneously with all other class I heirs. She is also entitled to inherit the property of

an illegitimate son. Step-mother is not entitled as mother to inherit as one of Class I heirs.

(8) Son of a predeceased daughter

Son of a predeceased daughter inherits simultaneously with the other heirs specified in

Class I of the Schedule. Daughter’s son would include adopted son of a predeceased daughter

i.e., if the latter was in the position of the adoptive mother.11 A female Hindu who is not married

or whose marriage has been dissolved or is a widow or whose husband has renounced the world

or ceased to be a Hindu or is of unsound mind, now has the capacity to take a son in adoption to

11 Section 14, Hindu Adoptions and Maintenance Act 1956

herself, therefore a son adopted would be in a position of a daughters son and be entitled to

succeed as such under the present section.

(9) Daughter of a predeceased son

The daughter of the predeceased son inherits simultaneously with a son, daughter,

widow, son of a predeceased son and other heirs specified in Class I of the Schedule. Son’s

daughter would include the adopted daughter of a predeceased son.

(10) Daughter of a predeceased daughter

She inherits simultaneously with son, widow and the other heirs specified in class I of the

schedule. The rules relating to the rights of son to succeed apply mutatis mutandis to the son of a

predeceased son of a predeceased son

(11) Daughter of a predeceased son of a predeceased son.

She inherits simultaneously with son, widow and the other heirs specified in class I of

the schedule. The rules relating to the rights of son to succeed apply mutatis mutandis to the son

of a predeceased son of a predeceased son.

(12) The son of a predeceased son of a predeceased son.

He inherits simultaneously with son and the other heirs specified in class I of the

schedule. The rules relating to the rights of son to succeed apply mutatis mutandis to the son of a

predeceased son of a predeceased son.

Order of succession and distribution of property among heirs in class I

Section 9 - Order of succession among heirs in the Schedule

“Among 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 shall be preferred to those in the third entry; and so on in

succession.”

The heirs specified in the class I of the schedule may for convenience be described as the

preferential heirs of the intestate. They constitute a distinct and exclusive category and succeed

in preference to all other heirs. Failing all others of the intestate in the category of the

preferential heirs enumerated in class 1 of schedule but not until then his property the devolves

upon the heirs specified in other categories

For example:- A dies leaving surviving him a brother , a step brother and son of pre-deceased

brother. Full blood is preferred to half blood and therefore the brother who is heir specified in of

hi class I will have preference over the step brother and will take the whole of his property to the

exclusion of the step brother and of the brother’s son who is a heir in entry IV of class 2. If A

dies leaving only his step brother and the son of a predeceased full brother the step brother will

take the property to the exclusion of the brother’s son.12

Section 10 - Distribution of property among heirs in class I of the Schedule

“ The property of an intestate shall be divided among the heirs in class I of the Schedule in

accordance with the following rules:--

Rule 1.—The intestate’s widow, or if there are more widows than one, all the widows together,

shall take one share.

Rule 2.—The surviving sons and daughters and the mother of the intestate shall each take one

share.

Rule 3.—The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the

intestate shall take between them one share.

Rule 4.—The distribution of the share referred to in Rule 3—

12 Satyacharan v. Urmila AIR 1970 SC 1714

(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 gets equal portions; and the branch of

his predeceased sons gets the same portion;

(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the

surviving sons and daughters get equal portions.”

Where a partition of a joint family property takes place and a separate share is given to the

mother, then in the case of death of one of the sons the mother would be entitled to have a share

in the separate property of her son. Fact that earlier when the partition took place she was given a

share would not place any bar.13

CASES

Section 8: “The property of a male Hindu dying intestate shall devolve according to the

provisions of this Chapter-

 (a) firstly, upon the heirs, being the relatives specified in class 1 of the Schedule.

 (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in

class II of the Schedule.

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased,

(d) lastly, if there is no agnate, then upon the cognate of the deceased”.

Section 8 may be summarized as follows:

When a male having interest in the Mitakshara coparcenary property dies, his property would

first devolve by succession upon any of the relatives mentioned in Class I. If there is no Class I

heir, then the property would devolve upon the relatives mentioned in Class II, in the specified

order. In the rare case that there is no Class to heir, the property will go to the Agnates and if

there are no agnates then to the cognates. If there are still no heirs then the Government will

come in and escheat the property.

13 Savitri v. Devaki AIR 1982 Kar. 67

In Savitri v. Devaki 14 it was held that- Where a partition of a joint family property takes place

and a separate share is given to the mother, then in the case of death of one of the sons the

mother would be entitled to have a share in the separate property of her son. Fact that earlier

when the partition took place she was given a share would not place any bar.

In Yudhistir v. Ashok Kumar15 it was held that a Hindu male is governed by Mitakshara school

under Section 8 of the Act, the property that devolves on him will be his separate property. Such

a property would never amount to join family property in his hands as against his son.

Before the act was passed however, in the cases of Kamalammal v. Vishwanathaswami16 as well

as the Supreme Court decision of Gur Narain v. Gur Tahal Das17, it was held that the

illegitimate son takes half of what he would have taken had he been a legitimate son. It is the

humble submission of the author that the view taken in these two cases is the right one simply

because an illegitimate son should not be made to suffer for not apparent fault of his own. The

court must take into account the benefit of that illegitimate child because the very reason for the

procreation of the illegitimate child would be the fault of none other than the father and the child

who is not at fault, should subsequently not be made to suffer. It is in this light that the judiciary

must take some affirmative action in bringing up the status of these illegitimate children.

In as much as the share of the daughters and more specifically, the illegitimate daughters goes,

the law was finally settled in 1994 with the Supreme Court judgment in Vithal Bhai v. Bhana

Bai18 where it was specifically held that an illegitimate daughter may not inherit.

CONCLUSION

14 AIR 1982 Kar. 67 15 AIR 1987 SC 55816 46 Mad 167 (PC)17 AIR 1952 SC 22518 AIR 1994 SC 481

When a Hindu inherits the property from his father under section 8 he takes it as his separate

property and not as joint family property vis-a-vis his sons.19 The property in section 8 includes

agricultural land also.20

The growth of the Hindu Law of Succession can be traced from the Vedic Period, In early Hindu

society, women had no right to property, except Stridhan, and were thus economically dependant

on their father, brothers, or husband, and the earliest attempts to reform Hindu society began in

the late nineteenth century.21

The courts should attempt not to abrogate the rights of illegitimate children, but must instead

work toward uplifting their status by giving them a right in the coparcenary property. It is only a

matter of time before the courts realize that they cannot discriminate between people for the

simple reason of their sex or whether or not they were legitimate. One must keep in mind at all

times that the law is meant for to safeguard the interests of people and to work for their up-

liftment, economically and socially. To a great extent that goal has been achieved by Sections 6

and 8 of the Hindu Succession Act. Law is dynamic and evolution of law with changes in society

is inevitable and this amendment is a classic example of that.

19 Commissioner of Wealth-tax v. Chander Sen, AIR 1986 SC 1752.

20 Tukaram Genba Jadhav v. Laxman Genba Jadhav, AIR 1994 Bom 247.

21 Ibid, 32.