2. Succession to the Property of a Hindu Male Dying Intestate
This is the second post in Family Law-I (Hindu Law), Unit V — having laid out the overall scheme of the Hindu Succession Act in the previous post, this post works through Sections 8 to 13, the rules that decide who inherits when a Hindu male dies intestate.
The Problem This Topic Solves
When a Hindu male dies without a will, someone has to decide, in a legally certain order, exactly who gets his property and in what proportion — his widow, his children, his parents, and a wide circle of more distant relatives could all potentially claim a share. Sections 8 to 13 answer this by building a strict, cascading order of heirs: a later class or category is considered only if no heir exists in an earlier one.
The Four-Class Order of Heirs — Section 8
Section 8 provides that a Hindu male's property devolves, first, upon the heirs specified in Class I of the Schedule to the Act; if there is no Class I heir, then upon the heirs specified in Class II; if there is no Class II heir either, then upon the deceased's agnates; and only if there is no agnate at all, upon his cognates. Each class is exhausted before the next is even considered — there is no question of Class II heirs sharing with Class I heirs.
Class I Heirs — The Schedule
Class I is the largest and most commonly applied class in practice, since most Hindu males are survived by at least one of these relatives. It consists of:
- Son, daughter, widow, mother
- Son of a predeceased son, daughter of a predeceased son, widow of a predeceased son
- Son of a predeceased daughter, daughter of a predeceased daughter
- Son of a predeceased son of a predeceased son, daughter of a predeceased son of a predeceased son, widow of a predeceased son of a predeceased son
- Four further entries added by the 2005 Amendment: son of a predeceased daughter of a predeceased daughter; daughter of a predeceased daughter of a predeceased daughter; daughter of a predeceased son of a predeceased daughter; daughter of a predeceased daughter of a predeceased son
Under Section 9, all of these heirs take simultaneously — there is no internal ranking within Class I itself, unlike the classes that follow.
How Class I Heirs Share the Property — Section 10
Section 10 lays down four rules for dividing the property among Class I heirs. The intestate's widow (or, if he left more than one, all his widows together) takes one share. Each surviving son, each surviving daughter and the mother, if alive, each take one share. The heirs in the branch of each predeceased son or predeceased daughter together take the one share that son or daughter would have taken had they survived — that branch's share is then divided further among its own members. This is what lawyers call succession per stirpes as between branches, but per capita among heirs within the same branch or at the same level.
Class II Heirs — Order of Preference — Section 11
Class II applies only if the deceased left no Class I heir at all. Unlike Class I, Class II heirs are arranged in nine numbered entries, and an earlier entry completely excludes a later one; heirs listed together within the same entry take simultaneously and in equal shares.
| Entry | Heirs |
|---|---|
| I | Father |
| II | Son's daughter's son; son's daughter's daughter; brother; sister |
| III | Daughter's son's son; daughter's son's daughter; daughter's daughter's son; daughter's daughter's daughter |
| IV | Brother's son; sister's son; brother's daughter; sister's daughter |
| V | Father's father; father's mother |
| VI | Father's widow; brother's widow |
| VII | Father's brother; father's sister |
| VIII | Mother's father; mother's mother |
| IX | Mother's brother; mother's sister |
Agnates and Cognates — Sections 12–13
If there is no heir in Class I or Class II, the property passes to the deceased's agnates — relatives connected to him wholly through males, whether by blood or adoption — and only failing any agnate, to his cognates, relatives connected to him through one or more females in the chain. Section 12 fixes the order of preference among several agnates or several cognates: a person with fewer degrees of ascent is preferred over one with more; where the degrees of ascent are equal, a person with fewer degrees of descent is preferred; and where both are equal, the heirs take simultaneously. Section 13 explains how these degrees are actually counted, starting from the intestate himself.
Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum (1978)
This case explains how Section 8 interacts with coparcenary property. Where the deceased held property as a member of a Mitakshara joint family and also left Class I heirs, the courts must first work out a **notional partition** immediately before his death, exactly as if he had actually demanded a partition on that date. Only the share he would have received on that notional partition — his separate, individual interest — passes under Section 8 to his Class I heirs; the rest remains joint family property held by the surviving coparceners. The Supreme Court held that a widow who is entitled to a share on notional partition (as she would have been, had partition actually taken place in the father's lifetime, under the law then applicable) must be given that share *before* the deceased's own share is further divided among the Class I heirs including her — she effectively benefits twice: once as a sharer on the notional partition, and again as a Class I heir of her husband's resulting share.
Commissioner of Wealth Tax, Kanpur v. Chander Sen (1986)
This case decides what a Class I heir actually receives when he inherits under Section 8 — his own separate property, or ancestral joint family property in which his own children acquire a birthright interest merely because it passed down from their grandfather. Before 1956, under Mitakshara doctrine, property a son inherited from his father was treated as ancestral in his hands, so the son's own son acquired a coparcenary interest in it by birth. The Supreme Court held that this old doctrine does not survive the Hindu Succession Act, 1956: once Section 8 applies, the heir takes the property as his individual, separate property, exactly like any other item of self-acquired property, with no automatic birthright interest arising in favour of his own children. The son may, of course, choose to throw the property into a joint family pool himself — but nothing in Section 8 compels or presumes that he has done so.
- Section 8 lays down a strict cascading order — Class I, then Class II, then agnates, then cognates — and a later class is reached only if the earlier one is completely empty.
- All Class I heirs take simultaneously, with no internal ranking; Class II heirs are ranked across nine numbered entries, an earlier entry excluding a later one entirely.
- Under Section 10, the widow and each surviving son, daughter and the mother take one share each; the branch of a predeceased son or daughter shares the one share that person would have taken.
- Agnates (Section 12) are preferred over cognates, and within each group, fewer degrees of ascent are preferred, then fewer degrees of descent.
- Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum (1978) requires a notional partition of coparcenary property immediately before the deceased's death, before Section 8 is applied to his own share.
- Commissioner of Wealth Tax, Kanpur v. Chander Sen (1986) held that property a Class I heir inherits under Section 8 becomes his individual, separate property — his own children acquire no automatic birthright coparcenary interest in it, unlike the pre-1956 Mitakshara position.
- The four Class I entries added by the 2005 Amendment all relate to a predeceased daughter's line — a direct consequence of the daughter now being a coparcener and full heir in her own right.
- Uttam v. Saubhag Singh (2016) applied Chander Sen further, holding that property already converted into a father's separate property under Section 8 does not revive as coparcenary property merely because a grandson is later born — Section 6 protects actual coparcenary property, not property that has already ceased to be joint.
- "Agnate" and "cognate" are defined by the nature of the connecting relatives, not by how distant the relationship is — a relative connected through even one female link is a cognate, however close in degree.
A Practical Example
Suppose Suresh dies intestate, survived by his widow Geeta, two sons, Anil and Vinod, and a daughter, Meena. All four are Class I heirs, so Class II, agnates and cognates are never reached. Under Section 10, Geeta, Anil, Vinod and Meena each take one share — that is, each gets one-fourth of Suresh's property. Now suppose instead that Anil had predeceased Suresh, leaving behind his own son, Ravi, and daughter, Priya. Geeta, Vinod and Meena would each still take one full share, while Ravi and Priya together take the one share their father Anil would have taken — that is, one-sixth each, since the branch's single share is divided equally between the two of them. Once Vinod actually receives his one-fourth share of Suresh's property, that share is his individual property under Chander Sen — Vinod's own son gets no automatic birthright claim in it.
Quick Revision Points
- Section 8 — cascading order: Class I, then Class II, then agnates, then cognates; a later class is reached only if the earlier one is entirely empty.
- Section 9 — Class I heirs take simultaneously; Class II heirs are ranked by entry (I to IX), an earlier entry excluding a later one.
- Section 10 — the widow, each surviving son/daughter and the mother take one share each; a predeceased child's branch shares that one notional share among themselves.
- Section 11 — within the same Class II entry, heirs take simultaneously and equally.
- Sections 12–13 — agnates precede cognates; fewer degrees of ascent are preferred, then fewer degrees of descent; degrees are counted from the intestate himself.
- Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum (1978) — a notional partition of coparcenary property must be worked out immediately before the deceased's death before Section 8 applies to his resulting share.
- Commissioner of Wealth Tax, Kanpur v. Chander Sen (1986) — property inherited under Section 8 is the heir's individual, separate property, not automatically ancestral property in which his own children have a birthright.
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