NAME:RAJ VARDHAN AGARWAL

COURSE: BBA LLB(H)

BATCH:2017-2022

FAMILY LAW II

Intestate succession is defined by Legal Dictionary as the distribution when a person dies
without leaving a
valid will or testament and the heirs will take (receive the possessions) by the laws of
descent and
distribution in the estate. Collectively these are called the laws of intestate succession. In
case person dies
without making a will there needs to be some broadly accepted rules upon which the
property shall devolve
upon those succeeding him.
Hindu Succession Act, 1956 (Position after 9-9-2005)
Amending Act 2005 was one of the steps to remove discrimination contained in S. 6 of
Hindu Succession
Act, 1956. It gave equal rights to daughters in the Hindu Mitakshara Coparcenary property
as to sons have. It makes
all daughters, including married ones, coparceners in joint family property. Simultaneously
section 23 of the Act as disentitles the female heir to ask for partition in respect of dwelling
house wholly
occupied by a Joint Family until male heirs choose to divide their respective shares therein,
was omitted by
this Amending Act. It also made women right in agricultural land equal to men. According to
the amending Act of 2005, in a Joint Hindu Family governed by the Mitakshara Law, the
daughter of a coparcener shall, also by birth become a coparcener in her own right in the
same manner as the
son heir. She shall have the same rights in the coparcenary property as she would have
had if she had been a
son. She shall be subject to the same liabilities and disabilities in respect of the said
coparcenary property as
that of a son and any reference to a Hindu Mitakshara Coparencer shall be deemed to
include a reference to a
daughter. But this provision shall not apply to a daughter married before the
commencement of the Hindu
Succession (Amendment) Act of 2005. This provision shall not affect or invalidate any
disposition or alienation including partition or testamentary
disposition of property which had taken place before 20 th December, 2004. In the matter of
succession of property of a Hindu male dying intestate, the Act lay down a set of general
rules in sections 8 to 13. Mitakshara coparcenary property shall devolve by testamentary or
intestate succession under the Act and not
as survivorship.
General rules of succession in the case of males –
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 I of the Schedule;
(b) Secondly, if there is no heir of class II 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 agitates of the
deceased; and
(d) Lastly, if there is no agnate, then upon the cognates of the deceased.
Class I heirs:-
The property of a Hindu Male dying intestate would be given first to heirs within Class I.
They are:
i. Mother,
ii. Widow,
iii. Daughter,
iv. Son,
v. Widow of a predeceased son,
vi. Son of a predeceased son,
vii. Daughter of a predeceased son,
viii. Widow of a predeceased son of a predeceased son,
ix. Daughter of a predeceased son of a predeceased son,
x. Son of a predeceased son of a predeceased son,
xi. Daughter of a predeceased daughter, and
xii. Son of a predeceased daughter. Some new heirs are added by Hindu Succession
(Amendment) Act, 2005. They are:
xiii. Son of a predeceased daughter of a predeceased daughter,
xiv. Daughter of a predeceased daughter of a predeceased daughter,
xv. Daughter of a predeceased son of a predeceased daughter, and
xvi. Daughter of a predeceased daughter of a predeceased son
 The adopted children (son or daughter) are also to be counted as heirs when succession
is done.
 The children born of void or voidable marriage (by effect of section 16 of HMA, 1955) are
deemed
to be legitimate children and are thus entitled to participate as sharers in the succession to
the
intestate.
 The widow inherits simultaneously with the other heirs and in case there are more than
one widow,
together they are entitled to one share which is to be divided equally amongst them.
 The widow is entitled to a share from the property of the intestate even if she remarries
after his
death.
 The widow of a predeceased son inherits with the other heirs. However her right (along
with the
children of the predeceased son) is dependent upon the share that the predeceased son
would have
been entitled to had he been alive. Also, she is excluded from the share if she has
remarried before
the death of the intestate.
 The daughter inherits simultaneously with the other heirs and gets the share as that of a
son. She
takes the property in her individual capacity and not in the capacity of a woman’s estate.
Also, she
is entitled to the property of the intestate even if she is married. All these heirs inherit
simultaneously. On failure of any such heir as specified in Class I, the property
devolves upon the enumerated heirs specified in Class II, wherein an heir in the first entry is
preferred over
an heir in second category in the Class II and similarly, any heir in a higher entry shall be
preferred over an
heir in a lower category.
Entry I –
a) Father.
Entry II –
a) Son’s daughter’s son.
b) Son’s daughter’s daughter. (Now Class I, After Amendment Act of 2005)
c) Brother. d) Sister.
Entry III –
a) Daughter’s son’s son.
b) Daughter’s son’s daughter. (Now Class I, After Amendment Act of 2005) c) Daughter’s
daughter’s son. (Now Class I, After Amendment Act of 2005) d) Daughter’s daughter’s
daughter. (Now Class I, After Amendment Act of 2005)
Entry IV –
a) Brother’s son.
b) Brother’s daughter.
c) Sister’s son.
d) Sister’s daughter.
Entry V –
a) Father’s father.
b) Father’s mother.
Entry VI –
a) Father’s widow. [Step mother].
b) Brother’s widow.
Entry VII –
a) Father’s brother.
b) Father’s sister.
Entry VIII –
a) Mother’s father.
b) Mother’s mother.
Entry IX –
a) Mother’s brother.
b) Mother’s sister.
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 is more than one heir in one entry of Class II,
they shall inherit
equally.
For example, Entry III contains four heirs:
(a) Daughter’s son’s son
(b) Daughter’s son’s daughter (Now Class I, After Amendment Act of 2005) (c) Daughter’s
daughter’s son (Now Class I, After Amendment Act of 2005) (d) Daughter’s daughter’s
daughter (Now Class I, After Amendment Act of 2005)
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. The
father in entry I includes an adoptive father. However, a father is not entitled to any interest
in the
property of his illegitimate son as opposed to the mother. Nevertheless, a father is entitled
to inherit from his
son born of a void or voidable marriage (under section 16). Also, a step father in not entitled
to inherit from
his step son.
All brothers and sisters inherit simultaneously with the sister and other heirs in the Entry.
Here the term
brother includes both full and half brother. However when there is a full brother, he is
always preferred to a
half brother where, half brother means son of the same father but different mother. Uterine
brother is not
entitled to share the intestate’s property. However when the intestate and his brother are
illegitimate sons of
their mother, they are related to each other as brother in this entry.