TESTAMENTRY AND

INTESTATE SUCCESSION

UNIT: 4.4
 The law of the testamentary succession is concerned
how best the effect could be given to the wishes of
the testator(i.e. the person who made the will)
 The testator enjoys full freedom of bequeathing his
property.
 It is concerned with matters such as:
 Who are the persons entitled to take the property
 What are the rules of preference among the various
relations.
 In
what manner the property is to be distributed in
case a person has more than one heir;
 What are the disqualifications of heirs and the
allied and subsidiary matters.
 The law of intestate succession is more properly
the law of inheritance,which determines mode of
devolution of the property of the deceased on
heirs solely on the basis of their relationship to the
deceased, while law of testamentary succession
deals with the rules relating to devolution of
property on relations as well as others. This is the
main distinction between them.
Apart from sec.30,which confers upon a person a power of
disposing of, by will or other testamentary disposition, his
property including the undivided interest in the
Mitakshara coparcenary property the Hindu Succession
Act,1956 deals with intestate succession among Hindus.
Succession opens at the time of the death of the person
whose estate is in question and is governed by this law in
force at the time.
Line of succession qua settlement cannot be
created by a Hindu

 Now a Hindu can dispose of his property by a

settlement or otherwise in any manner known to Hindu
Law.

 But he cannot lay down a line of succession against the

Hindu Law of Inheritance. (Tagore v. Tagore)

 A Hindu can of course prevent the property from

passing to his heirs and altering the course of
succession by making a transfer inter vivos including
gift or by a testamentary disposition in the form of a
 He can also create a trust.
 But, a Hindu cannot create an estate unknown to Hindu
law or lay down in the deed of settlement of his
property a line of succession against the principles of
Hindu Law of inheritance.
Section 3 Definitions:
(g) “Intestate" - a person is deemed to die intestate in
respect of property of which he or she has not made a
testamentary disposition capable of taking effect;
A person who dies without making a will is knows as
“intestate”
(f) "heir" means any person, male or female, who is
entitled to succeed to the property of an intestate under
this Act;
(a)"agnate" - one person is said to be an "agnate" of
another if the two are related by blood or adoption
wholly through males;
For example, a person is an agnate of his father’s
brother’s son. It has been held that being related by blood
does not mean being related by birth. Hence ‘agnate’ also
includes relations by marriage. Therefore a father’s
brother’s widow is an agnate of the deceased and entitled
to his property. Similarly a father’s brother’s daughter
For instance, brother, brother’s son, son’s son, son’s son’s
son, father, Father’s father, Father’s father’s father or
mother, son’s daughter, son’s son’s daughter etc., are
agnates.
( c ) "cognate" - one person is said to be a cognate of
another if the two are related by blood or adoption but not
wholly through males;
Whenever in the relationship of a person with another, a
female (or more than one female) intervenes anywhere in
the line, one is a cognate to another.
Numbers of cognates is larger than that of agnates.
(Prabhu dayal v. Suwaram)
For instance, sister’s sons and daughters; Daughter’s sons
and daughters; mother’s mother and father; father’s
mother’s father and mother, mother’s father’s son and
daughter (maternal uncles and aunts) are all cognates.
(e) "full blood", "half blood" and "uterine blood"-

(i) two persons said to be related to each other by full

blood when they are descended from a common ancestor
by the same wife, and by half blood when they are
descended from a common ancestor but by different
wives;
(ii) two persons are said to be related to each other by
uterine blood when they are descended from a common
(j) "related" means related by legitimate kinship:

PROVIDED that illegitimate children shall be deemed to be

related to their mother and to one another, and their
legitimate descendants shall be deemed to be related to
them and to one another; and any word expressing
relationship or denoting a relative shall be construed
accordingly.
(Children of void and voidable marriages are entitled to
succeed to their father.( Rameshwari deve v. State of
Bihar).

Therefore, children of both the wives would be entitled to

take benefits, though second wife could not be so entitled.
(Nagarathamma v. Venkatalakshamma)
6. Devolution of interest in coparcenary property.―
(1) On and from the commencement of the Hindu
Succession (Amendment) Act, 2005 (39 of 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 the
same manner as the son;
(b) have the same rights in the coparcenery property as
she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said
coparcenery 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
regarded, 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
(3) Where a Hindu dies after the commencement of the
Hindu Succession (Amendment) Act, 2005 (39 of 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, and the
coparcenery property shall be deemed to have been
divided as if a partition had
taken place and,―
(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 (39 of 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 (39 of 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 (39 of 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.]
 Post Amendment, daughters are entitled to share in
ancestral property in the capacity of a coparcener.
(Santilal Sahu v. Sanitri Sahu 2008)

 The Amendment gives the right to daughters from 2005

and not merely to daughters who were born after 2005.
( Pravat Chandra Pattnik v. Sarat Chandra Pattnaik)
Supreme Court on Prakash & ors. v. Phulvati & ors.,
held that amended section has prospective effect. The
right conferred on the daughter of a coparcener ‘on and
from the commencement of the amendment’. The
daughter as well as her father should be alive on the date
of coming into force of the amended section for the
operation of this provision.

The court has summed up as:-- affected thereafter will be

affected thereafter will be governed by the Explanation.
Hence it is now settled that this provision would apply in
case when both father and daughter were alive at the
Swaran Lata v. Kulbhushan Lal, 2014

A daughter can claim partition of the dwelling house, the

provisions of amendment Act would apply even on
pending proceedings as new section 6 does not contain a
saving clause which implies that omitted section 23 is not
saved for pending cases.