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 daughters 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. Thos was enlarged by Hindu Womens
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 childs 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 fathers interest in such

3 Neelavva v. Shivavva AIR 1989 Kant 45

4 Sec. 20 of Hindu succession act

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.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.
5 Daddo v. Raghunath AIR 1979 Bom 176

(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
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 widows 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

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

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 share 7 that is
equal to that of the son. She takes it absolutely and not as womens 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.
7 Section 10 r 2.
8 Section 14
9 Narani bai v. State of Harayna AIR 2004 P&H 206
10 Section 28

(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. Daughters 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
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. Sons 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.

11 Section 14, Hindu Adoptions and Maintenance Act 1956

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 brothers 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 brothers 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 intestates widow, or if there are more widows than one, all the widows together,
shall take one share.

12 Satyacharan v. Urmila AIR 1970 SC 1714

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.
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:

13 Savitri v. Devaki AIR 1982 Kar. 67

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.
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.

14 AIR 1982 Kar. 67

15 AIR 1987 SC 558
16 46 Mad 167 (PC)
17 AIR 1952 SC 225

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

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 upliftment, 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.

18 AIR 1994 SC 481

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.