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JAMIA MILLIA ISLAMIA

2019-2020

HINDU LAW

TOPIC: SUCCESSION OF HINDU


MALE PROPERTY

SUBMITTED TO: Dr Kahkashan Danyal


SUBMITTED BY: Mohd Altmash
B.A LL. B (H) 5th Sem,
2

Acknowledgement
For the successful completion of this project, I would like to thank my teacher
Dr Kahkashan Danyal. She made the concepts of the topic so clear in my mind
that it became very easy for me to work on the topic. It would not have been
possible to complete the project work without his guidance.

Last, but not the least I would like to thank my Parents who stood by me through
every thick and thin.

MOHD ALTMASH

CONTENT
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 Introduction
 Customary rules of Succession
 S.3, Hindu Succession Act
 Legitimate and Illegitimate relationship
 Succession to Hindu Male
 Heir of Hindu Male
 S.8, Hindu Succession Act
 Class I heirs
 Class II heirs
 S.11, Hindu Succession Act
 Agnates and Cognates
 S.12, Hindu Succession Act
 Order of Succession among Agnates and Cognates
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Introduction

The Hindu Succession Act, 1956 has undergone a lot of change by virtue of Hindu
Succession (Amendment) Act, 2005 (39 of 2005). The Section 6 of the said Act has been totally
replaced by a new provision. This new provision has wide sweeping ramifications on Hindu
Joint Family.
This Amendment is based on the 17th Report of Law Commission of India on ‘Property
Rights of Women: Proposed Reforms under Hindu Law’ under the Chairmanship of Justice B.P
Jeewan Reddy dated 5th May, 2000. This Commission recommended for the removal of
anomalies and ambiguities with regard to property rights of Hindu women under the Act of 1956.
As per the view of the Law Commission, the exclusion of daughters from participating in
coparcenary property ownership merely by reason of sex was unjust. Therefore, this Amending
Act gives full-fledged property rights to daughters in ancestral property along with sons.

Also the Mitashara dual mode of devolution of property has also been done away with.
According to Section 6(3) of the Act of 2005, the interest of a deceased Hindu dying after
commencement of the Act of 2005 shall devolve by testamentary or intestate succession, as the
case may be, under this Act and not by survivorship.

This Act has added certain close cognates in this list of Class I heirs, viz., and predeceased
granddaughter’s children.

Also two sections. Viz., Sections 23 and 24 which discriminated against women have been
omitted by the Amending Act of 2005. Section 23 had special provision with regard to dwelling
house. According to it, if a Hindu died intestate leaving behind both male and female heir in
Class I and property left behind him/her includes a dwelling house wholly occupied by his/her
family then the female heir did not have a right to claim partition of the property till entitled to a
right of residence in the dwelling house only if she was unmarried or had been deserted or
separated from her husband or was a widow

Section 24 disqualified certain widows, viz., widow of a predeceased son window of predeceased
son and bother’s widow if they remarried on or before the date of succession to the intestate
opened.
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The son’s pious obligation to pay his father’s debts has also been abolished by this
amendment by virtue of sub-section (4).

Happily, the Hindu law of succession does not hold a student in awe any longer, as it used to be
about five decades ago. There are no longer two schools of Hindu Law basing their inherence on
fundamentally different principles; no longer are these different sub-school of the Mitakshara
creating complications in the detailed working of the Mitakshara rules of Succession; and no
longer are there customs modifying law of succession and adding to complication. Today, we
have one uniform law of succession for all Hindus. Old Hindu law and customary law of
succession stand abrogated.1

This does not mean that we have made a total departure from the old law. The old framework has
been retained. The basic classification of inheritance to the property of a Hindu female and
Hindu male still exists. The Mitakshara bias of preference of males over females and of agnates
over cognates has been considerably whittled down, but as we have to go to remoter heir, the
rule of agnatic preference reasserts itself. Women’s estate and reversioner have been abolished,
but who will inherit woman’s property, and thus the concept of reversionary inheritance lurks in
the background. The doctrine of representation has been retained in respect of male heirs upto
three degree of descent- it has been extended to cognate descendants also but not fully. The per
stirpes rule of succession is retained in respect of Class I heirs, but in respect of others heirs, per
capita rule is applied.

Customary rules of succession-

In some tribes the Chudabanth (wife-wise determination of shares) prevails. Such a custom is
tribal and not territorial.2 The Hindu Succession Act preserves the dual mode of devolution of
property under the Mitakshara School. The joint family property still devolves by survivorship
with this important exception that rule of succession will apply to a Mitakshara coparcener is he
dies leaving behind mother, widow, daughter, daughter’s daughter, son’s daughter, son’s son’s
daughter, son’s widow, and daughter’s son.

The Hindu Succession Act, 1956, bases its rule of succession on the basic Mitakshara principle
of propinquity, i.e., preference of heirs on the basis of proximity of relationship. The Mitakshara
1
Section 4, Kesharbai v. State of Mah., 1981 Bom. 115.
2
Hardan Singh v. Deputy Director, Consolidation, 1992 S.C. 1009.
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limited the effect of the principle by the twin rules of exclusion of females and of agnatic
preference. The rule of exclusion of females has been done away with, while the rule of agnatic
preference has been considerably modified so far as it concerns the nearer relation. The
Dayabhaga principle of religious efficacy has been abrogated. The modern Hindu law of
succession is essentially a secular law. Religious or spiritual considerations figure nowhere.

A person, so long as he is alive, is free to deal with his property in any way he likes. He is, by
making a will, free to lay down his own scheme of distribution of his property after his death.
This is known as a testamentary disposition. If he dies without leaving a will, it is the purpose of
the law of inheritance to determine the persons who will take his property. In our contemporary
world, someone must be the owner of the property, an individual, corporate person or state. The
law of succession is classified a under:

1. Testamentary succession, and


2. Intestate succession.

The law of 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); what are the rules relating to making
of a will and allied and subsidiary matters. The testator enjoys full freedom of bequeathing his
property.
The law of intestate succession is concerned with matters as such as: who are the persons
entitled to take the property, i.e., who are the heirs; 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. The law of
inheritance consists of rules which determine the 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 the two terms, succession and inheritance.

Apart from S. 30, which confers upon a person a power of disposing, his property including the
undivided interest in the Mitakshara coparcenary property 3 the Hindu Succession Act, 1956,
deals with intestate succession among Hindus. We would discuss the subject under following
3
Puna v. Babana, (1971) 28 C.I.J. 387.
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heads: (1) Succession to a Hindu male, (2) Succession to a Hindu female, (3) Disqualifications of
heirs, and (4) General rules of succession.

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 this time.4

Line of succession quo settlement cannot be created by

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. This has now been settled by a series of decisions beginning from the
Judicial Committee’s decision in Tagore v. Tagore5. A Hindu can ofcourse of succession
by making a transfer inter vivos including a gift or an executory gift or by a testamentary
disposition in the form of will. He can also create a trust. These are modes of disposition
recognized by Hindu Law. A Hindu can also enter into a family settlement deed in this
case is that each of the parties would have a half share is valid and binding and its
validity is not being challenged. 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. For in doing so he would be legislating.6

Before we proceed further, it is necessary to understand the meaning of certain terms.

S.3, Hindu Succession Act- Intestate- A person who dies without making a will is
known as ‘intestate’. Clause (g) of Section 3 of the Act, runs: “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.”

Heir-
A person who is entitled to inherit property after the death of the intestate is known as
heir. Clause (f) of S.3 of the Act runs: “Heir means any person, male or female, who is
entitled to succeed to the property of interest under the Act”
4
Daddo v. Raghunath, 1979 Bom. 176.
5
(1872) Ind. App. Sup. Vol. 47: 16 W.R 359.
6
Brijendra Pratap Singh v. Prem Lata Singh, AIR 2005 All 113.
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Descendants-
Descendants means the offspring’s of a person. Immediate descendants of a person
are his sons and daughter. The children of sons and daughters and their children, and so
on, are also descendants. A person may have descendants through his sons or daughters
upto any degree of descent.

Ascendants-

Ascendants of a person a known as ascendants. Immediate ascendants of a person are his


father and mother. The father and mother of his father and mother are also his ascendants, and so
are their parent’s upto any degree of ascent.

Collaterals-
Collaterals are descendants in parallel lines, from a common ancestor to ancestress. For
instance, brother is a collateral, so is a sister. Similarly, paternal uncle and paternal aunt and their
children, maternal uncle and maternal aunt and their children are collateral.

Agnates-
When a person traces his relationship with another wholly through males, he or she is an
agnate. For instance, brother, brother’s son, son’s son, son’s son’s son, father, father’s father,
father’s mother, father’s father’s father of mother, son’s daughter, son’s son’s daughter, etc. are
agnates. The sex of a person who traces his relationship with another is immaterial. What is
material is that in between him or her and the common ancestor or ancestress, all persons
through whom relationship is traced should be males.

Cognates-
Whenever in the relationship of a person with another, a female (or more than one female)
intervenes anywhere in the line, one is cognate to another. Number of cognates is larger than that
of agnates.7 For instance, sister’s son 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 are all

7
Prabhu Dayal v. Suwaram, 1994 Raj. 149.
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cognates. Clause (c) of Sec 3(1), Hindu Succession Act, runs; ‘One person is said to be a
‘cognate’ of another if the two are related by blood or adoption but not wholly through males’. A
cognate be a descendant, ascendant or collateral.

Full Blood-

When the father and the mother of two persons are the same, they are related to each other by
full blood. According to s. 3(1) (e) (i), Hindu Succession Act, ‘Two persons are said to be related
to each other by full blood when they are descended from common ancestor by the same wife.’
Thus, children of the same parents are children by full blood, e.g., brothers or sisters or a brother
and a sister. In the common parlance, they are known as the ‘real brothers, the real sisters or the
real brother and sister.

Half Blood:

When two persons have the same father but different mothers, they are related to each other by
half blood. According to clause (e) (i) of S. 3 (1), Hindu Succession Act, two persons are said to
be related to each other when they ‘are descendent from common ancestor but by different
wives. For instance A marries Q and a son B is born to him from Q; Q dies and A marries R and
a daughter C is born to him from R; A divorce R and marries S. A son D is born to him from S,
B,C and D are related to each other as brother and sisters by half blood.

Uterine Blood;

When two persons have the same mother but different fathers, they are said to be related to each
other by uterine blood. According to clause (e) (ii) of S. 3(1) of this Act, ‘Two persons are said
to be related to each other by uterine blood when they are descendent from a common ancestress
but by different husbands. ‘For example, P takes a husband S and from him she gets a son A. S
dies and P remarries Y and gets a son B. Subsequently, she divorces him and takes another
husband Z, and from him a daughter C is born to her. A, B and C are related to each other as
brother and sister by uterine blood

Legitimate and Illegitimate relationship-

A person who is born within a lawful wedlock is legitimate, and he or she is related to his or her
parents by legitimate relationship. A person born outside the lawful wedlock is illegitimate, and
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he or she is related to his or her parents by illegitimate relationship. It has been held that the child
born out of live-in-relationship cannot claim a right.8 The illegitimate relationship is recognized
to the mother. Section 3(1) (i) runs: ‘related, means related by legitimate kinship: Provided the
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 one another; and any word
expressing relationship or denoting a relative shall be construed accordingly.’ A division bench
of the Andra Pradesh High Court has declined to take the view that the proviso to Section 3(1) (i)
should be confined to those children who do not become legitimate under Section 16, Hindu
Marriage Act.9 Children of void and voidable marriages are entitled to succeed to their father, 10
therefore, children of both the wives would be entitled to take benefits, though second wife
would not be so entitled.11

Succession to Hindu Male

The Hindu Succession Act, 1956, deals with the inheritance to : (a) the separate properties of
Mitashara Male, (b) to the separate and coparcenary properties of Mitashara male, and (c) to the
undivided interest in the joint family property of a Mitashara coparcener , who dies leaving a
widow, daughter, daughter’s daughter, son’s daughter, son’s widow, grandson’s daughter,
grandson’s widow or daughter’s son. The Act does not apply to the property of a Hindu who is
married under the Special Marriage Act, to any estate which descends to a single heir by the
terms of any covenant of India or by the terms of any enactment passed before the
commencement of the Hindu Succession Act and to the Valiamma Thampura Kovilagam Estate
and the Palace Fund of former Cochin State.

Heir of a Hindu Male

Under the Act, heirs of a Hindu Male fall under the following heads:
S. 8, Hindu Succession Act-

8
Bharatha Mata v. R. Vijaya Ramganathan, 2010 SC 2685.
9
Rasala v. Rasala, 1992 AP 234.
10
Rameshwari Devi v. State of Bihar, 2000 SC 375.
11
Nagarathamma v. Venateshamma, 2000 Kant 181.
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(I) Class I heirs, (2) Class II heirs, (III) Agnates, (IV) Cognates, and (5) Government. 12.
Class I and Class II heirs are sometimes also called enumerated heirs, since the Act
enumerates them. Class I heirs are also called preferential heirs, as presence of
anymore of them excludes heirs in all other classes. They are also called
simulataneous heirs, as heirs in Class I inherit simultaneously one does not exclude
the other.

The old rules of propinquity have been retained with some modifications. The
discriminatory rule of inheritance, i.e., the weightage given to an aurasa son over an adopted
son, has been abrogated and replaced by the rule of equality. The privileged position of the
dasiputra and a Sudra has been abolished and he is no longer an heir to his father. In the new
scheme of heirs, the positions of females has been brought at par with agnates.

Class I Heirs

In Class I Heir, we have following enumerations of heirs13:

(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, (ix) Daughter of a predeceased son of a predeceased son, (x) Son of
a predeceased daughter, (xi) Daughter of a predeceased son, (xii) Son of a
predeceased daughter, (xiii) Son of a predeceased daughter of predeceased daughter,
(xiv) Daughters of a predeceased daughter of a predeceased daughter, (xv) Daughter
of a predeceased son of a predeceased daughter, (xvi) Daughter of a predeceased
daughter of a predeceased son.14

Son, son’s son and son’s son’s son-

Son means a legitimate son of the porosities. The special position of Sudra dasiputra has not
been retained. This is on account of the definition of the word ‘related’ in S 3(1) (i) which
lays down that as far as relationship is concerned with a male propitious ‘related’ means

12
Under the old Hindu Law, before the property could go the government, one more class of heirs was recognized,
the spiritual heirs. With the secularization of Hindu law of inheritance, they have been omitted. The Mitashara
classification of heir into Sapinda. Samanodakas and Bandhus, as well as the Dayabhaga classification of them into
Sapinda, Sakulyas and Samanodakas have been done away with.
13
Sometime the expression children issues, heir carry the same meaning.
14
Added by Amendment Act of 2005.
12

related by legitimate kinship. A legitimate son may be an aurana son or dattaka son. The
adopted son takes an equal share with the aurasa son. An illegitimate child is not entitled to
inherit.15

Gharjamai-
Among the Sathals, Gharjamai has the status of a son. He is for all intents and purposes
like an adopted son. In Ashok v. Rani Hembrom, 16 it was held that he is entitled to succeed to
his father-in-law’s property like an adopted son.

Posthumous son-

A posthumous son is also included. Section 20 of the Act lays down that a child who was in
the womb at the time of the death of the intestate and who is subsequently born alive has the
same right of inheritance as if he was already born when propitious died. Under the Hindu
Succession Act, 1956, the sons born after the partition and the divided sons inherit with other
sons.
A son of a voidable marriage is a full-fledged legitimate son and will inherit as such. But
the son of void marriage and a son of a predeceased son of a predeceased son. However,
grandson or great grandson will not succeed if the marriage of their father was void or
annulled.17

Daughter, son’s daughter, son’s son daughter-

Just as in the case of a son, daughter means a legitimate daughter, born natural or adopted. If
there are both natural born and adopted daughters, they inherit equally. An illegitimate
daughter cannot inherit. A daughter also includes a posthumous daughter, but does not
include a step daughter. The position of daughters of void and voidable marriages is the same
as that of the sons. The distinction between married, unmarried and widowed daughters or
between indigent and rich daughter is no longer cooperate. All daughters inherit and inherit
equally.18 Unchasty of a daughter is no bar to inheritance. A divorced daughter is also entitled

15
Daddo v. Raghunath, 1976 Bom. 176.
16
1988 Pat. 129.
17
Section 16, Hindu Marriage Act, 1955.
18
Ramesh Verma v. Lagesh Saxena, 1998 MP 46.
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to inherit. Under the M.P Ceiling of Agriculture Holdings Act, 1960, major daughters of the
deceased Bhaominder do not fall in the definition of daughter.19

The above applies to son’s daughter and son son’s daughter mutatis mutandis. The position
of these daughters when marriage of their father is void or voidable is the same as of
grandsons and great grandsons. A daughters who had received a gift of joint family property
cannot be denied a share when succession opens up.20

Daughter’s son and daughter’s daughter-

Both natural born and adopted children of a predeceased daughter are included. It seems that
illegitimate daughters and sons of a daughter are also included. It seems that illegitimate
daughters and sons of a daughter an also included. Proviso to clause (j) of S.3 says that
‘illegitimate children shall be deemed to be related to their mother and one another. This
means that the illegitimate children are related to their mother, i.e., daughter. The daughter’s
children take the property representing her when she is dead.

Widow, son’s widow, son’s son’s widow-

The propositus widow means the wife of a valid marriage. If a male dies leaving behind only
his widow after coming into force of the Act she would be the sole heir and would inherit
absolutely.21 Thus, if the propositus marriage is void, the wife is not his lawfully wedded
wife, and therefore she will not be his widow. The same is the position of the wife of the
annulled voidable marriage. It is submitted that S.16, Hindu Marriage Act, 1955, confers a
status of legitimacy on the children of annulled voidable marriage and not on the wife of such
marriage. A divorced wife will also not be his widow. The same applies mutatis mutandis to
son’s widow and son’s son’ widow.

An unchaste widow can also inherit. 22 If she remarries, she will not be divested of her
husband’s inheritance. A son’s widow or a son’s son’s widow who has remarried on the date
when succession opens cannot inherit. In the case of son’s widow and son’s son’s widow,
unchastity is no bar.

19
Sooraj v. Rehti, 1995 SC 872.
20
Meenaksharmma v. Nanjodappa, 1993 Kant. 12.
21
Sadha Singh v. Gurudwara Sahib Narike, 2006 SC 3282.
22
Jayalakshari v. Ganevesa, (1972) 2 M.L.J. 50.
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Mother-
Mother is always a mother. Propositus may be her legitimate aurasa son, or adopted son or
an illegitimate son, she will inherit. She may be unchaste, she might have remarried. 23 She
might have been divorced, she remains a mother, it is also immaterial whether he marriage
with the propositus father was void or voidable. But the stepmother is not included in the
expression ‘mother’ and she does not inherit in Class I heir, though she does so as Class II
heir.

Class II Heirs and their Share

S.11, Hindu Succession Act- The Class II heirs are divided into nine categories. The rule is
that an heir is in earlier category excludes all heir in later categories. All heirs in one category
take simultaneously between them and take per capita. Merely because numerals have been
used in some categories, such as in categories II, III, and IV, it does not indicate any
preference of heirs in an earlier numeral over the heir in the later numeral. Thus, in category
II, son’s daughter’s son bear numeral (1), it does not mean that son’s daughter in numeral (2),
brother in numeral (3), sister in numeral (4) will be excluded.24

(I) Father

Father is the only nearest heir who has not found a place in Class I. On the basis of
propinquity, he should have figured in Class I, along with the mother. But such has been the
Mitakshara notion of propinquity that under the Mitakshara law, mother was considered to
have greater propinquity than the father.25 Thus, it seems, the Hindu Succession Act, 1956,
gives effect to the Mitakshara rule of propinquity. Father is the sole heir in category I, and, in
the absence of class I heirs, takes the entire property.

(II)
1. Son’s Daughter’s Son.
2. Son’s Daughter’s Daughter.
3. Brother.
4. Sister.
23
Gurdit Singh v. Darshan Singh, 1973 P. & H. 362.
24
Satya v. Urmila, 1970 S.C. 1714.
25
Mitakshara, 11, 13; Vivada Chintamani also took the same view.
15

Brother and Sister- “Brother” and “Sister” here include the following-

 Brother and Sister by full blood, and


 Brother and Sister by half blood.

Brother and Sister of equal ranks inherit equally. 26 The rule is when there is any brother or sister
by full blood, the brother or sister by half blood is excluded. When there is no brother and sister
by full blood, the brother or sister by half-blood inherits. The rule of preference of brother and
sister of full blood is in accordance with the Mitakshara. However, in Purshottam v. Shrippa,27,
the Bombay High Court had held that view that a full brother excludes a half-brother and a full
sister share excludes a half-sister, but where there is a brother of a half blood and sister of full
blood, the former will not be excluded. The Division Bench took the view as it thought that the
basis of classification of heirs was not nearness of the blood relationship. It is submitted that this
is not correct. A Full bench has now overruled this view.28

1. The brother and sister by uterine blood are excluded. 29 If the propositus and his brother
and sister are all legitimate children of their mother, such brothers and sisters are heirs to
him.30 All the heirs in this category inherit per capita. 31 Since all heirs in this category
share per capita, and all of them are heirs of this category, each will take one share.

(III)
 Daughter’s son’s son,
 Daughter’s son’s daughter,
 Daughter’s daughter’s son,
 Daughter’s daughter’s daughter.

This is a simple category. This rule of the distribution of property is the same, all heirs in one

category take per capita.

26
Krishna v. State of Haryana, 1994 SC 2536.
27
1976 Bom. 374.
28
Women Govind v. Gopal Baburao, 1984 Bom. 208 (F.B).
29
See explanation to the Schedule which says reference to a brother or sister do not include reference to a brother
or sister do not include reference to a brother or sister by uterine blood.
30
Kumara v. Kunjulakshmi, 1972 Ker. 66.
31
Section 3(i), Hindu Succession Act.
16

(IV)

 Brother’s son,
 Brother’s daughter,
 Sister’s son,
 Sister’s daughter.

Under this category, brother’s sons and daughters and sister’s son and daughters may be the
children of the brothers and sisters by full blood or half blood. But they cannot be the children of
brothers and sisters by uterine blood. But it is propositus and his brothers and sisters are all
illegitimate children of their mother, then children of such brothers and sisters will be entitled to
inherit. The rule is the same as in case of brothers and sisters. Children of brothers and sisters by
full blood are preferred over children of sisters and brothers by half blood. All four heirs shall
take 1/4th each. All heirs in this category take per capita.

Father’s father and father’s mother do not include paternal step-grandfather or paternal step-
grandfather. If they are adoptive parents of father, they will be excluded. When both of them are
heirs, take per capita, i.e., ½ each.

(V)

 Father’s widow.
 Brother’s widow.

Father’s widow means stepmother. She is the only step relation that is included among heirs.
Even if she had remarried at the time when succession opens, she will inherit. According to
Mitakshara, a stepmother did not succeed to her stepson. But she is, according to the Mitakshara,
a gotraja sapinda and as such she could come after all his male sapinds. It was only in Bombay
that she succeeded as gotraja sapinda, elsewhere in the Mitakshara jurisdiction, she did not
succeed. Under the Dayabhaga School also, she did not succeed. The Hindu Succession Act
seems to adopt the Bombay view. She succeeds along with the brother’s widow.
17

A brother’s widow is not entitled to succeed if she had remarried on the date succession opens.
If there are two brothers, they will take per capita. If there are more than one widow of the
same brother, then also they will inherit per capita. Similarly, if there are more than one
stepmother, they will take per capita. The rule that if there are more windows than one, they
together take one share applies to Class I heirs. It does not apply to Class II heirs.

(VI)
Father’s brother,

Father’s sister.

Father’s brother and father’s sister may be by full blood or by half blood, but the rule is that so
long as there is father’s brother or father’s sister by full blood, the father’s brothers or father’s
sisters by half- blood do not succeed. The latter succeed on the failure of the former. Father’s
brother or father’s sister by uterine blood is not included, but father’s sister or father’s brother by
adoption is included. Thus, if there are father’s brother by natural birth and father’s sister by
adoption, both will inherit and take simultaneously.

(VII)

Mother’s brother

Mother’s sister.

The paternal uncle and paternal aunt are in category VII but maternal uncle and maternal aunt in
category IX, the last category of class II heirs.

The maternal uncles and maternal aunts by natural birth as well as by adoption are included. If
maternal uncle is by natural birth and maternal aunt is by adoption or vice versa, both inherit
simultaneously and take per capita. Both maternal uncle and maternal aunt by full blood and
half-blood are included but the full blood excludes the half blood.

Agnates and Cognats

S.12, Hindu Succession Act-


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AGNATES:

When two persons are related to each other by blood or adoption but wholly through males, they
are said to be agnates of each other. 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 would be an
agnate.

COGNATES:

 When two persons are related to each other by blood or adoption but not wholly through manes,
they are said to be cognates of each other. For example, A’s father’s sister’s son would be a
cognate of A. Similarly, A’s brother’s daughter’s son would be A’s cognate. It has been held that
whenever a relationship of a person with another female (or more than one female) intervenes
anywhere in the line, one is a cognate to another. Thus the daughter’s son and daughter and son’s
daughter’s son and daughter are cognates.

ORDER OF SUCCESSION AMONG AGNATES AND COGNATES:

 In case of non-availability of Class I and Class II heirs, the property of the deceased devolves
upon his agnates and if there are no agnates, upon his cognates. Therefore when agnates are
present, cognates would not get any share in the property of the deceased. However, if more than
one agnates or cognates are present, then the order of succession among them is governed by the
provisions of section 12 of The Hindu Succession Act, 1956. Sections 12 provides as under:

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 hereunder:-

Rule 1.-Of two heirs, the one who has fewer or no degrees of ascent is preferred.

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.
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Rule 3.-Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they
take simultaneously.

Rule 1:

Of two heirs, the one who has fewer or no degrees of ascent is preferred.

This rule says that of two heirs, the one who has fewer or no degrees of ascent is preferred means
that an heir who claims as the descendant of the Hindu male who has died intestate or one who is
in the nearer line to him is to be preferred to one who claims in a remoter line. 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 remoter line namely
the line of grandfather. The rule lays down merely that a relation who traces his relationship to
the deceased either in the deceased’s own line or in the line of a nearer ancestor is to be preferred
to one who traces his relationship in the line of a remoter ancestor in the male line.

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.

This rule lays down that in the case of agnates or cognates, where the number of degrees of
ascent is the same or none, that heir is preferred who has fewer or no degrees of descent. This
means the same thing as that where a person in the same line is nearer to the common ancestor
than another relation of the same line, the former is preferred to the latter. 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. So also the brother’s
son’s son is to be preferred to the brother’s son’s son’s son for though both the claimants are in
the same collateral line beginning from father, brother’s son’s son is nearer or has fewer degrees
of descent than the brother’s son’s son’s son. 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.

 
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Rule 3:

 Where  neither heir is entitled to be  preferred  to  the other under Rule 1 or Rule 2 they take 
simultaneously.

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. In the application of these rules, there is no discrimination on
the ground of sex. It should however not be forgotten that a relation who is an agnate though in a
remote degree of ascent or descent or of both is to be preferred to a cognate who may be in a
nearer degree or nearer line or both.

Computation of degrees:

Another question that arises is that of computation of degrees. This is answered by section 13
which provides as under:

13. Computation of degrees.

  (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.

  (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.

This section lays down that for the purpose of determining the order of succession among
agnates and cognates, the 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. Degrees of ascent and
degrees of descent shall be computed inclusive of the intestate. Every generation constitutes a
degree either ascending or descending.

Bibliography:
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1. Paras Diwan: Law of Marriage and Divorce, Universal Law. Publishing Co. Pvt. Ltd.,
New Delhi.
2. R. K. Aggarwal: Hindu Law, Central Law Agency, Allahabad.
3. Bare act.