The law of succession defines the rules of devolution of property in case a person dies without making a Will. These rules provide for a category of persons and percentage of property that will devolve on each of such persons.
When a person dies without a Will or intestate in legal terms, the appropriate succession laws come into effect for the transfer of assets held by the person to the legal heirs. Succession in partition or redistribution of property are generally governed by many rules. These rules are based on the will of a deceased person. But there are cases where there is no will and eventually needs some broadly accepted rules upon which the property shall devolve upon those succeeding him. These rules are covered under Hindu Succession Act, 1956.
Succession of Male Hindu dying Intestate under Hindu Succession Act:
Section 8 to 14 deal with the same laying down certain rules of succession when a male hindu dies intestate. Section 8 lays down the classes of the heir and it;s legal order. These rules are to be read along with the Schedule as well as other Sections pertaining to the same (Sections 9 to 13).
SECTION 8 mentions
“The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter— firstly, upon the heirs, being the relatives specified in class I of the Schedule;
secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
lastly, if there is no agnate, then upon the cognates of the deceased.”
Thus section 8 groups the legal heirs of male and guides through how a property devolves in absence of a will. According to the law the property first devolves to class I heir of the schedule, which includes They are the son, daughter, widow, mother, son of a predeceased son, daughter of a predeceased son, son of a predeceased daughter, daughter of a predeceased daughter, widow of a predeceased son, son of a predeceased son of a predeceased son, daughter of a predeceased son of a predeceased son and widow of a predeceased son of a predeceased son. All these heirs inherit simultaneously. If heirs of Class I are not available, the property goes to the enumerated heirs specified in Class II of the Schedule, wherein an heir in a higher entry is preferred over an heir in a lower entry.
The word ‘widow’ mentioned here is a lady who is validly married under the provision of the Hindu Marriage Act, 1955 and who has acquired the status of widow by virtue of her husband. If her marriage with a person is void under law, on his death she would not get the status under class I of the schedule of the Hindu Succession Act, 1956.
SECTION 9 explicitly points out the order of succession between the Class I and the Class II heirs and also among the Class II heirs.
According to this Section, Class I heirs may be termed as preferential heirs of the intestate because the property first devolves upon them on the death of the intestate. All the Class I heirs succeed simultaneously and there is no question of any preference or any priority among them. However, when there is no Class I heir, the property devolves upon the Class II heirs enumerated in the Schedule in the nine Entries.
In the absence of heirs of Class I and Class II, the property devolves on the agnates and cognates of the deceased in succession. Now, one person is said to be the agnate of the other if the two of them are related by blood or adoption wholly through the males. Agnates is a relation, who is related to the deceased wholly through MALES. There must be a male in the start of each line of relation. Hence, it will be held as Agnates.
For Example: son, Son’s son, Son’s son’s son, son’s daughter, father’s mother.
Similarly, one person is said to be the cognate of the other if the two of them are related by blood or adoption, but not totally through males, i.e. there has to be some intervention by a female ancestor somewhere. Meaning, The relations in which, when a person is related with the deceased through one or more female links, the relation is said to be as COGNATES.
For Example: daughter’s son, sister’s son, sister’s daughter.
One more thing to note is that 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; Commissioner of wealth Tax v Chander Sen, AIR 1986 SCC 567.
In Tukaram Genba Jadhav v Laxman Genba Jadhav, it was mentioned that the property in section 8 also includes agricultural land.
SECTION 12, Order of Succession among Agnates and Cognates
Shall be determined in accordance with the rules of preference laid down hereunder:
Rule 1.— Of two heirs, the one who has fewer or no degrees of ascent is preferred. Thus a son’s son’s son being a descendant in the line of the deceased is to be preferred to brother’s son’s son who comes in father’s line which is remoter than one’s own line. Again brother’s son’s son being in the father’s line is to be preferred to father’s brother’s son’s son who is in a remote line namely the line of grandfather.
Rule 2.— Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent. Thus a father’s brother’s son being nearer than father’s brother’s grandson is preferred to the latter though both of them are in the same line, namely the line starting from father’s father. In the same way a son’s son’s son’s son is to be preferred to a son’s son’s son’s son’s son for though the claimants are in the same line namely the line of the deceased, the former is a nearer degree than the latter.
Rule 3.— Where neither heirs is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously. Thus, Where the heirs are equal in the descent in the same line they take simultaneously. Father’s father’s father and father’s father’s mother take equally being in the same line; so also son’s son’s son’s daughter and son’s son’s son’s son take equally both being in the line of the deceased and neither being nearer in descent.
Computation of degree-
Rule 1 – For the purposes of determining the order of succession among agnates or cognates, relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both, as the case may be.
Rule 2- Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.
Rule 3 – Every generation constitutes a degree either ascending or descending.
Section 13 lays down the above rules for computation of degree. The relationship among agnates and cognates shall be established from intestate to the heirs. The first degree shall start from intestate that is, degrees of ascent and descent are to be made inclusive of the intestate (Rule 2, section 13)
For example: The heir to be considered is the mother’s father’s father’s daughter’s son of the intestate. He has four degrees of ascent represented in order by (i) the intestate, (ii) the intestate’s mother, (iii) that mother’s father and (iv) that father’s father and two degrees of descent i.e. (i) the daughter of the common ancestor and (ii) her son (the heir).
Disqualifications for Heirs
The act mentions certain disqualification which debars certain heirs who are under such disqualification, in succeeding to the property for the intestate.
These disqualifications are:
Disqualification arising from murder – a person who commits murder or abets the commission of murder shall be disqualified from inheritance of the property of person murdered.
Disqualification arising from conversion – Where, before or after the commencement of this Act, a Hindu has ceased or ceases to be a Hindu by conversion to another religion is disqualified. Children born to him or her after such conversion and their descendants shall also be disqualified from inheriting the property. Unless such children or descendants are Hindus at the time when the succession opens, they will not enjoy the ownership of the property.
Before the Hindu Succession Act, 2005, “Section 24, laid down that a widow shall not be entitled to succeed to the property of the intestate, if it is known that she has remarried, when the date of succession opens.” This provision was omitted and therefore, remarriage by these widows is no longer a disqualification.
Author: Ashi Singh, Law Center 1 University of Delhi