The General Rules of Succession

That is the opposite of the classical coparcenary, and it is worth saying so: heirs under this Act are co-owners in a perfectly ordinary sense, not coparceners.

Section 20: the child in the womb

A child who was in the womb at the time of the death of an intestate, and who is subsequently born alive, shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate; and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.

Two conditions and one consequence.

In the womb at the death, and subsequently born alive. A child conceived after the death does not inherit; a child born dead does not inherit.

The vesting relates back to the date of the death. So the estate is not distributed as though the child did not exist and then adjusted: the child's share vests from the death itself, and any distribution made in the meantime must give way.

Compare the corresponding classical rule in [Partition: What It Is, Who Can Demand It, and How], where a son in the womb for whom no share was reserved may have the partition reopened.

Section 21: simultaneous deaths

Where two persons have died in circumstances rendering it uncertain whether either of them, and if so which, survived the other, then, for all purposes affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder.

This is a favourite one-sentence question, and the answer is the single phrase the younger is presumed to have survived the elder.

Three points to add if there is room.

It is a rebuttable presumption, "until the contrary is proved". Evidence that the elder in fact survived displaces it.

It applies only where the order is uncertain. If it is known who died first, the section never arises.

It operates for all purposes affecting succession to property, so it decides both estates at once.

A worked example

MU's June 2023 paper sets exactly this: A and his friend B die together in an accident. A dies intestate leaving his mother, father and one sister. B also dies intestate leaving his wife, son and daughter.

Because A and B are not related, section 21 does not actually change either answer: neither inherits from the other in any event. The two estates are worked separately.

A's estate. Class I heirs are son, daughter, widow and mother. A has only his mother among them. She takes the whole, and the father and sister, being Class II, take nothing.

B's estate. His wife, son and daughter are all Class I and take equally, one third each.

The examiner's trap is the presumption itself: a student who reaches for section 21 and starts asking who was younger has missed that it matters only where one of them would otherwise inherit from the other. Say that expressly and the answer is complete.

Section 22: the preferential right to acquire

Sub-section (1). Where an interest in any immovable property of an intestate, or in any business carried on by him or her, devolves upon two or more heirs specified in Class I of the Schedule, and any one of them proposes to transfer his or her interest, the other heirs have a preferential right to acquire it.

Sub-section (2). The consideration is, in the absence of agreement, determined by the court on application; and a person proposing to acquire who is then unwilling to acquire at the price determined is liable to pay all the costs of the application.

Sub-section (3). If two or more Class I heirs propose to acquire, the one who offers the highest consideration is preferred.

The Explanation defines "court" as the court within whose jurisdiction the immovable property is situated or the business is carried on, and any other court the State Government notifies.

This is a right of pre-emption, and its purpose is to keep a stranger out of a family's land or business. Three limits are worth naming: it applies only to immovable property and businesses, only among Class I heirs, and only where one of them proposes a transfer. It gives no right to force a sale.

Section 23: omitted

Section 23 was headed "Special provision respecting dwelling-houses", and it was omitted by the Hindu Succession (Amendment) Act 2005 with effect from 9 September 2005.

The heading is what the consolidated text of the Act still prints, and the omission note with it. The repealed words themselves are not in the copy this book was written from, because a consolidated Act carries the heading of an omitted section and not its text, and this book states no provision it has not read. What can safely be said, and is enough for an answer, is this: section 23 was a special provision about dwelling-houses which restricted a female heir's position in relation to the family dwelling house, and it was omitted entirely in 2005, so that no such restriction now exists and a female heir stands on the same footing as a male heir in respect of it.

Do not reproduce the repealed text from a textbook without checking it against a pre-2005 print of the Act. The section is gone, and what matters for the examination is that it is gone and when.

The omission belongs in any answer about the 2005 reforms, alongside the substituted section 6 and the omitted section 24.

A worked example

A Hindu male dies intestate on 1 March. His wife is two months pregnant. He is survived by a full brother, a half brother by his father's second wife, and a son who died with him in the same accident, leaving a widow. Nobody knows who died first. He owned a house jointly with his sister.

The full and half brothers. Section 18: heirs related to the intestate by full blood are preferred to those by half blood, where the relationship is otherwise the same. Both are brothers, so the full brother takes and the half brother is excluded.

The son and the intestate dying together. Section 21: where two persons have died in circumstances rendering it uncertain which survived the other, it is presumed, until the contrary is proved, that the younger survived the elder. The son is younger, so he is presumed to have survived his father, inherits, and the property then passes to his own heirs, including his widow.

The child in the womb. Section 20: a child who was in the womb at the time of the death and who is subsequently born alive has the same right to inherit as if he had been born before the death, and the inheritance vests as from the date of the death.

How do the heirs hold? Section 19: where two or more heirs succeed together, they take per capita and not per stirpes, and as tenants in common and not as joint tenants. The exceptions are the branch shares in section 10 and section 16.

The joint house. Section 22: where an interest in immovable property, or in a business, devolves on two or more Class I heirs and one of them proposes to transfer his interest, the others have a preferential right to acquire it, and if they cannot agree the court fixes the consideration.

Suppose an heir were a widow who had remarried. Nothing follows. Section 24, which had disqualified certain widows on remarriage, was omitted in 2005.

What it does NOT mean

Section 18 is not a general preference for the full blood. It applies only where the relationship is otherwise the same; a nearer half-blood relation still beats a remoter full-blood one.

Section 19 is not the whole story of how heirs take. The per stirpes exceptions are in section 10 and in Rule 2 of section 16.

Tenants in common is not joint tenancy. There is no survivorship among heirs who take under the Act.

Section 20 does not give the unborn child a contingent interest. The inheritance vests as from the date of the death, provided the child is born alive.

Section 21 is not a rule about who did die first. It is a presumption, rebuttable by proof, and it matters only where one of the two would otherwise inherit from the other.

Section 22 is not a right to stop a sale. It is a preferential right to acquire, exercisable at a price the parties agree or the court fixes.

Section 23 no longer exists. It restricted a female heir's right to claim partition of a dwelling house and was omitted in 2005.

Quick revision

• s.18: full blood preferred to half blood where the relationship is otherwise the same.
• s.19: two or more heirs take per capita, not per stirpes, and as tenants in common, not joint tenants; the exceptions are the branch shares in s.10 and s.16 Rule 2.
• s.20: a child in the womb at the death who is born alive inherits as if born before the death, and the inheritance vests from the date of the death.
• s.21: where it is uncertain which of two persons survived, the younger is presumed to have survived the elder, until the contrary is proved.
• s.22: Class I heirs have a preferential right to acquire an interest in immovable property or in a business that another proposes to transfer; the court fixes the price on disagreement, and a transfer in breach may be avoided.
• s.23, which had restricted a female heir's right to claim partition of a dwelling house, was omitted in 2005.

Test yourself

1. When is a full-blood heir preferred to a half-blood heir? Under section 18, where the relationship is otherwise the same. A nearer half-blood relation is not displaced by a remoter full-blood one.

2. How do two or more heirs take under the Act? Per capita and not per stirpes, and as tenants in common and not as joint tenants, under section 19, save as otherwise expressly provided; the exceptions are the per stirpes branch shares in section 10 and Rule 2 of section 16.

3. What are the rights of a child in the womb? Under section 20, a child who was in the womb at the time of the death of an intestate and who is subsequently born alive has the same right to inherit as if he or she had been born before the death, and the inheritance is deemed to vest with effect from the date of the death.

4. What is the presumption in case of simultaneous death? Under section 21, where two persons have died in circumstances rendering it uncertain whether either survived the other, then, for all purposes affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder.