Exclusion of certain properties- Section 5

The Act specifically excludes certain properties from the application of the Act regarding succession.
Succession to property of a person who has married under the Special Marriage Act, 1954 is
governed by Indian Succession Act, 1925 and not by this Act. Similarly, the estate which descends by
the customs of primogeniture by the terms of any covenant or agreement between the Ruler of
Indian State and the Government of India, the Act does not apply.1 But after the 26th Amendment of
the Constitution, the Rulers of the State are derecognised and their non-state private properties will
be governed by the Act.2

Devolution of interest in coparcenary property-Section 6 of the Act deals with devolution of

interest of a male Hindu in coparcenery property and recognises the rule of devolution by
Survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary
property without including the females in it means that the females cannot inherit in ancestral
property as their male counterparts do. The law by excluding the daughter from participating in the
coparcenary ownership not only contributes to her discrimination on the ground of gender but also
has led to oppression and negation of her fundamental right of equality guaranteed by the
Constitution having regard to the need to render social justice to women, the States of Andhra
Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving
equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has
enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.

The new substituted section 6 reads as under:

3
[6. Devolution of interest in coparcenary property- (1) On and from the commencement of the
Hindu Succession (Amendment)Act, 2005, in a Joint Hindu family governed by the Mitakshara law,
the daughter of a coparcener shall, -

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a
daughter of a coparcener :

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or
alienation including any partition or testamentary disposition of property which had taken place
before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held
by her with the incidents of coparcenary ownership and shall be rewarded, notwithstanding
anything contained in this Act, or any other law for the time being in force, as property capable of
being disposed of by her by testamentary disposition.

(3) 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,

1
Jagat Singh v. Bhawani Singh, AIR 1996 Del 14; Niyati Sarangi v. Urabi Ladies Club, AIR 2009 (NOC) 172 (Ori.).
2
Shantadevi v. Sangram Singh, AIR 1996 Guj 72.
3
Section 6, subs. by the Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005) (w.e.f. 5-9-2005)
and the coparcenary property shall be deemed to have been divided as if a partition had taken place
and,-

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they
been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or
of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such
child would have got had he or she been alive at the time of the partition, shall be allotted to the
child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case
may be.

Explanation: For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener
shall be deemed to be the share in the property that would have been allotted to him if a partition
of the property had taken place immediately before his death, irrespective of whether he was
entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall
recognise any right to proceed against a son, grandson or great-grandson for the recovery of any
debt due from his father, grandfather or great-grandfather solely on the ground of the pious
obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu Succession
(Amendment) Act, 2005, nothing contained in this sub-section shall affect

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may
be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or
alienation shall be enforceable under the rule of pious obligation in the same manner and to the
same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005
had not been enacted.

Explanation.-For the purposes of clause (a), the expression "son", "grandson" or "great-grandson"
shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born
or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the
20th day of December, 2004.

Explanation: For the purposes of this section "partition" means any partition made by execution of a
deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected
by a decree of a Court]
7. Devolution of interest in the property of a tarvad, mvazhi, kutumba, kavaru or illom.-

(1) When a Hindu to whom the marumakkattayam or nambudri law would have applied if this Act
had not been passed dies after the commencement of this Act, having at the time of his or her death
an interest in the property of a tarvad, tavazhi or illom, as the case may be, his or her interest in the
property shall devolve by testamentary or intestate succession, as the case may be, under this Act
and not according to the marumakkattayam or nambudri law.

Explanation.-For the purposes of this sub-section, the interest of a Hindu in the property of a tarvad,
tavazhi or illom shall be deemed to be the share in the property of the tarvad, tavazhi, illom, as the
case may be, that would have fallen to him or her if a partition of that property per capzita had been
made immediately before his or her death among all the members of the tarvad, tavazhi or illom, as
the case may be, then living, Whether he or she was entitled to claim such partition or not under the
marumakkattayam or nambudri law applicable to him or her, and such share shall be deemed to
have been allotted to him or her absolutely.

(2) When a Hindu to whom the aliyasantana law would have applied if this Act had not been passed,
dies after the commencement of this Act, having at the time of his or her death an undivided
interest in the property of a kutumba or kavaru, as the case may be, his or her interest in the
property shall devolve by testamentary or intestate succession, as the case may be, under this Act
and not according to the alziyasantana law.

Explanation.--For the purposes of this sub-section, the interest of a Hindu in the property of a
lautumba or kavaru, shall be deemed to be the share in the property of the kutumba or kavaru, as
the case may be, that would have fallen to him or her if a partition of that property per capita had
been made immediately before his or her death among all the members of the kutumba or kavaru,
as the case may be, then living, whether he or she was entitled to claim such partition or not under
the aliyasantana law, and such share shall be deemed to have been allotted to him or her absolutely.

(3) Notwithstanding anything contained in sub-section (1), When a sthanamdar dies after the
commencement of this Act, the sthanam property held by him shall devolve upon the members of
the family to which the sthanamdar belonged and the heirs of the sthanamdar as if the sthanam
property had been divided per capita immediately before the death of the sthanamdar among
himself and all the members of his family then living, and the shares falling to the members of his
family and the heirs of the sthanamdar shall be held by them as their separate property.

Explanation.-For the purposes of this sub-section, the family of a sthanamdar shall include every
branch of that family, whether divided or undivided, the male members of which would have been
entitled by any custom of usage to succeed to the position of sthanamdar if this Act had not been
passed.

Under sub-section (1) the interest of a deceased member in the property of a tarvad would devolve
under the provisions of the Act and not according to Marumakkattayam or Nambudri Law. The wife
and children of a deceased member of Karnavan cannot coalesce with the surviving members of the
tarvad, so as to constitute resultant entity into a tarvad.4 Similarly, under subsection (2), the interest
of a Hindu governed by Aliyasantana who dies after the commencement of this Act, his undivided
interest in the kutumba or kavaru shall devolve by testamentary or intestate succession under the
Act and not according to the Aliyasantana Law.5

4
Devaki v. M.V. Kumaran, AIR 1977 Ker 110.
5
Laxmi v. Parameshwari, AIR 1969 Mys 175.
Sub-section (3) deals with ‘Sthanam property’ and devolution of such property on the death of a
Sthanamdar. Sthanam literally means ‘status, rank or dignity’. The holder of sthanam was called a
sthanee or sthanamdar. The rulers granted sthanam to their Chieftains and important public officers
which were usually accompanied by a grant of land for the maintenance of dignity of the officer.
There were other families also which possessed sthanams Without any particular dignity attached to
them.

The incidents of the institution were that the senior most member of the family, usually a male,
became an sthanamdar, but sometimes a senior most female also became sthanamdan Separate
properties belonged to each sthanam and they vested in the holder who held them as a limited
owner and could alienate only for legal necessity.6 The legal position of an sthanee is equated to that
of a Hindu widow in that he represents the estate for the time having and can alienate for legal
necessity or benefit of estate.7

Section 7 (3) provides that when an sthanamdar dies after the Act, the sthanam property held by
him shall devolve upon the members of the family to which the sthanamdar belonged and the heirs
of the sthanamdar.8 Further, it provides that the property passes to the family and heirs as if the
property had been divided per capita among himself and members of the family then living
immediately before his death and the property will be held by them as their separate property.9 This
sub-section embodies a fiction and the purpose is to gradually abolish the sthanams. The fiction
should be confined for the purpose of choosing the heirs and it should not be extended further.10

We have seen that Section 7 regulates the devolution of interest in the propeny of a tarvad, tavazhi,
kutumba, kavaru or illom of those Hindus governed by Marumakkattayam, Aliyasantana and
Nambudri systems of law. As regards the separate or self-acquired property of a Hindu governed by
Nambudri law, the rules are those laid down in the Act.

Intestate Succession to the property of a Hindu Male- (Sections 8-13)

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”.

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.

6
M.K.B. Menon v. A.C., Estate Duty, AIR 1971 SC 2392
7
Kochuni v. State of Madras and Kerala, AIR 1960 SC 1080
8
Assistant Controller v. Balkrishna Menon, AIR 1967 Ker 210 (FB), confined by Supreme Court in AIR 1971 SC
2392
9
S.S. Gounder v. K.C. Gopalan, AIR 1973 Ker 149 (FB)
10
M.K. Balakrishna Menon v. Astt. Controller, AIR 1971 SC 2392
Property :

The word property under this section means all the property of the intestate inheritable under this
act. 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 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. Those 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. be ascertained
by the present section 8 and not the old law. This does not mean retrospective 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).

Prospective in operation:

The language of the section and particularly the words “shall devolve” plainly indicate that the
section is prospective in its operation. In Erramma’s11 case the Supreme court held that this section
applies where on death of male intestate devolution of his property takes place after the
commencement of the act and does not apply to the property of a male Hindu whose death took
place before the commencement of the act. In the latter case all questions of inheritance would be
determined according to the previous law.

This does not however mean that the section does not have any relevance or any application in the
case where a male Hindu had died before the commencement of the act. For instance a Hindu who
died in 1933 and his widow who succeeded his estate died in 1963 after the coming into force of the
present act but was not in the possession of the estate, the estate would devolve not upon her heirs,
but the heirs of her husband. The succession would be decided upon the date of death of the
husband and not the widow (limited owner) and the heirs would be those who would have
succeeded had he died in 1963( the date of death of the widow. The heirs will have to application.

11
Erramma v. Veruappanna AIR 1966 SC 1879
It is well established that

(1) Succession opens on death of limited owner.

(2) The law in force governs the succession.

The words “dying intestate” would mean a male Hindu dying without making a will or making an
invalid will. When the status of coparcenary is abolished under the Kerala joint Hindu family system
abolition act, the property of a male Hindu dying intestate would devolve on his class I heirs in
accordance with the provisions of the first schedule.12

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.13

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.

12
Putiyadath v. Naga kumara AIR 2001 Ker 38
13
Neelavva v. Shivavva AIR 1989 Kant 45
(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.14

(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.

(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.15

(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

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

14
Sec. 20 of Hindu succession act
15
Daddo v. Raghunath AIR 1979 Bom 176
subsequently is deemed to be the step-father of the child.16 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.

(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 share17 that is equal to that
of the son. She takes it absolutely and not as women’s estate.18 There is no priority among married
and unmarried daughters.19 Un-chastity of the daughter is no ground for exclusion20

16
Section 14(4) of Hindu adoptions and Maintenance Act.
17
Section 10 r 2.
18
Section 14
19
Narani bai v. State of Harayna AIR 2004 P&H 206
20
Section 28
(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.

(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.21 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

21
Section 14, Hindu Adoptions and Maintenance Act 1956
be a Hindu or is of unsound mind, now has the capacity to take a son in adoption to 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.

Cases before the amendment:

In Savitri v. Devaki 22 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 Kumar23 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.

It must be noted at this point that a son, as mentioned in the schedule, or a grandson, or a great-
grandson, has to be a legitimate son. This was laid down in the case of Daddo v. Raghunath24 by the
Bombay High Court, where the court held that an illegitimate son is not entitled to claim any share in
the property of his father. A son of a voidable marriage is however a full-fledged legitimate son and
will inherit the property of his father, but the son of an annulled voidable marriage will inherit the
property of the father alone and of no other relation.

Cases after the amendment:

In the case Harishchandra Vithoba Narawade v. Vatsalabai25 it was held that devolution of interest
in coparcenary property where a male Hindu dies intestate would devolve by survivorship upon the

22
AIR 1982 Kar. 67
23
AIR 1987 SC 558
24
AIR 1979 Bom 176
25
2005 (1) HLR 147 (Bom).
surviving members of coparcenary and not under the Act, but if he dies leaving behind female class I
heirs, interest of the deceased shall devolve upon the female heirs by intestate succession. Similar
views were taken in Lakshmi N. Tudu v. Basi Majhian26, Keelu Madana Mohana v. Gorakala
Varahalu27, Puttamma v. Ramegowda (H K)28.

An unmarried daughter gets equal status of coparcener and she is entitled for equal rights with a son
in the coparcenary property. In Ravikirthi Shetty v. Jaathpala Shetty29 the daughter was held not
entitled to claim distinct and separate share as coparcener since there was evidence on record that
she was unmarried on the date that the Karnatak act came into force and though she was given a
chance to procure evidence at the time of final decree proceedings that she was unmarried as on
the relevant date.

In Prem Bhatnagar v. Ravi Mohan Bhatnagar30 the honourable court held that the grandsons have
no right in the property of their grandfather who died intestate, but being male descendant and
members of Hindu Joint Family, they would become coparceners in the Hindu coparcenary along
with their father, while sons inherit self-acquired property of their father in terms of Section 8 of the
Act. Similar view was also taken in Sheela Devi v. Lal Chand31.

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.”

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 inter se. 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. However, there is one basic distinction
between the Class I and the Class II heirs. While all the heirs in Class I inherit the property
simultaneously, each of the entries in Class II constitute distinct and separate groups of heirs. Heirs
in higher entries inherit in priority, but there is no such concept of priority among the heirs in Class I.
For example, if a Hindu male dies intestate leaving behind his widow, two sons, son of a
predeceased son, widow of another predeceased son, two daughters and son of a
predeceased daughter, all of them will inherit simultaneously because all of them are heirs in the
Class I of the Schedule. However, if another Hindu male dies intestate leaving behind his sister and
his brother’s son, the sister being an heir in Entry II of Class II will get preference over his brother’s
son who is an heir in Entry IV of Class II.

26
AIR 2004 Jhar 121.
27
AIR 2005 NOC 580 (AP).
28
2004 (2) HLR 37 (Kant.).
29
AIR 2005 Kant 194; Deveerawa v Gangawa, AIR 2006 NOC 535 (Kant.).
30
2006 (2) HLR 219 (Del).
31
2006 (1) HLR 144 (P&H).
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—

(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.”

Sections 8 and 9 explicitly declare the law that the preferential heirs enumerated in Class I take
simultaneously and to the exclusion of all other heirs in Class II or otherwise. The Sections do not
mention any priority among them, but it nowhere follows that every individual heir who succeeds as
a heir in Class I is entitled to an equal share of the property along with other heirs of the Class. The
computation of the share of each is done in accordance with Section 10 which may constitute the
Statute of Distribution applicable to heirs in Class I. It should also be noted that the Act tries to put
the males and the females on equal footing. So it allots the shares to the males and the females pari
passu. The object of Section 10 is to deal with the amount of shares each person will be entitled to
when there are more than one to inherit simultaneously. The widow, the son, the daughter and the
mother will inherit to the property. However, this does not mean that each one of them will get
1/4th of the property. The four rules given in this Section are explanatory to the extent of
understanding how much share each one will get.

The rules are:

1) The widows, if there are more than one, shall take together only one share and [read with
Section19(b)] inherit that share equally as tenants-in-common and not joint tenants.

2) When there are more than one son, each son will get a share and similarly each daughter will get
a share and mother will also get a share. Thus this is based on the Principle of Equalization.

3) If there are sons and daughters of a predeceased son or a predeceased daughter, they shall been
titled to take together a share of the property of their father or mother as the case maybe, and
divide them equally among themselves. The family of the predeceased son would be entitled to one
part that the predeceased son would have been entitled to, had he been alive. Same thing applies to
a predeceased daughter. Thus these heirs succeed to the intestate’s property not as per capita but
as per stripe.
4) Rule 4 is in the nature of a corollary to Rule 3. It states that if there is a widow of a predeceased
son of a propositus, she will take the share of the predeceased son equally with her sons and
daughters. The four rules in Section 10 are to be read in consonance with Section 19 which gives the
two basic rules in case there is more than one heir succeeding to the property of the intestate. The
rules are:

(a) save as otherwise expressly provided in the Act, per capita and not per strip.

(b) as tenants-in-common and not as joint tenants. This is subject to any express provision to the
contrary.

Section 11. Distribution of property among heirs in Class II of the Schedule.- The property of an
intestate shall be divided between the heirs specified in any one entry in Class II of the Schedule
so that they share equally.

This Section provides that when there are more than one heirs in one entry of Class II, they shall
inherit equally. For example, Entry III contains four heirs:

(a) the daughter’s son’s son

(b) the daughter’s son’s daughter

(c) the daughter’s daughter’s son

(d) the daughter’s daughter’s daughter.

Thus according to this Section, they all share equally. It should be noted that the legislation
does not lay down any rule of discrimination between any male or female. If two heirs are
enlisted in the same entry, then irrespective of their sex, they share equally. All the heirs in
each one of the entries stand aequali jura and take per capita subject to the only exception
that full blood is preferred over half-blood.

In the case of Arunachalathammal v. Ramachandran32 , it was contended that the different

heirs mentioned in one entry (in this case Entry I of Class II) are subdivisions of that particular
entry and they do not inherit simultaneously but here again there is a question of preference
i.e. the first subdivision inherits and then in its absence, the later. The question arose because
there were, in his case, one brother and five sisters of the intestate and no other heir and the
brother contended that in a brother being in subcategory (3) of entry I, was to be preferred
over sister who was in subcategory (4) of entry I and thus he was entitled to the full property.
However the same was negated and it was held that all heirs in an entry inherit simultaneously
and there is no preference to an heir in a higher subcategory within an entry to an heir in a
lower subcategory in the same entry. Thus we find that the equality is between every
individual heir of the intestate and not between the sub-division in any particular entry. In fact,
the court went on to say that there were no subdivisions in any entry in Class II. They were just
roman numerals representing the heirs in the entry.

Section 12. Order of succession among agnates and cognates.-

The order of succession among agnates or cognates, as the case may be, shall be determined in
accordance with the rules of preference laid down here under:
Rule 1- Of two heirs, the one who has fewer or no degrees of ascent is preferred.

32
AIR 1963 Mad 255, (1963) 1 ML 254
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 2, they take
simultaneously.
This Section deals with the order of succession among agnates and cognates. Agnates come
within the scope of Section 8(c) whereas cognates come within the scope of Section 8(d). The
question of succession of cognates come only when there are no cognates and the question of
succession of agnates and cognates come only when there are no heirs in Class I and Class II.

Rule 1 lays down that out of two agnates or two cognates as the case maybe, the one with the
fewer or no degree of ascent shall be preferred.
Rule 2 lays down that where the degree of ascent is the same or none, the one with fewer or
no degree of descent shall be preferred.
Rule 3 lays down that in case of a tie even after applying Rules 1 and 2, they shall take
simultaneously. In accordance with the above three rules, the agnate and cognate relationship
maybe categorized as follows:
Agnates:
(a) agnates who are descendants, for example, son’s son’s son’s son and son’s son’s daughter.

(b) agnates who are ascendants, for example, father’s father’s father and father’s father’s
mother.
(c) agnates who are collaterals, i.e. who are related to the intestate by degrees of both ascent
and descent, for example, father’s brother’s son and father’s brother’s daughter.
Cognates:
(a) cognates who are
descendants, for example, son’s daughter’s son’s son and daughter’s son’s son’s son.

(b) cognates who are ascendants, for example, father’s mother’s father and mother’s father’s
father.
(c) cognates who are collaterals, i.e. who are related to the intestate by degrees of both ascent
and descent, for example, father’s sister’s son and mother’s brother’s son.
In both the cases, relatives (both agnates and cognates) falling in a higher subcategory shall
be preferred to a lower subcategory i.e. descendants shall be preferred over ascendants
who in turn shall be preferred over collaterals.

Section 13. Computation of degrees.-

1) For the purpose 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.
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.

Section 13 lays down the rules for computation of relationship between the intestate and his
agnate and cognate heirs. This relationship is traced from the intestate to the heir in terms of
degrees of relationship with the intestate as the starting point. There is no discrimination or
preference between male and female heirs. The second rule states that the computation of the
degrees of ascent and descent are to be made inclusive of the intestate. The relationship is to
be traced from the propositus on terms of degrees with a propositus as terminus a quo, i.e. the
first degree. However, the order of succession among agnates and cognates is not determined
merely by the total number of degrees of ascent and descent. It is subject to and regulated by
Section 12 of the Act.
The following are examples of rules of computation of degrees:
(a) The heir to be considered is the father’s mother’s father of the intestate. Hence there is no
degree of descent but there are four degrees of ascent represented by (i) the intestate, (ii) the
intestate’s father, (iii) that father’s mother and (iv) that mother’s father.

(b) The heir to be considered is the son’s daughter’s son’s daughter of the intestate. Hence
there is
no degree of ascent but there are five degrees of descent represented by (i) the intestate, (ii)
the
intestate’s son, (iii) that son’s daughter, (iv) that daughter’s son and (v) that son’s daughter.

(c) The heir to be considered is the mother’s father’s sister’s son (i.e. 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).

What is to be remembered is that when degrees, both of ascent and descent, are to be
computed in case of collateral, the degrees of ascent computed from the intestate are inclusive
of him, but in counting the degrees of descent from the ancestor, only generations of descent
are computed, i.e., the ancestor does not constitute a degree of descent