The General Rules of Succession

In one line

Six general rules that apply on top of the lists: full blood beats half blood, heirs take per capita as tenants in common, a child in the womb inherits, the younger is presumed to survive the elder, a Class I heir has a right of pre-emption, and the dwelling-house restriction is gone.

Section 18: full blood preferred to half blood

Heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect.

The definitions are in section 3, and repeat those in the Hindu Marriage Act: full blood is descent from a common ancestor by the same wife, half blood from a common ancestor by different wives.

The qualifying words carry the section. "If the nature of the relationship is the same in every other respect." The rule operates only between heirs of the same description. A full brother is preferred to a half brother, because both are brothers. A half brother is not postponed to a full nephew, because the relationships are of different kinds and the section never arises.

The rule applies within an entry, and does not disturb the order of the entries themselves.

Section 19: how two or more heirs take

If two or more heirs succeed together to the property of an intestate, they take:

(a) save as otherwise expressly provided in the Act, per capita and not per stirpes; and

(b) as tenants in common and not as joint tenants.

Per capita and per stirpes

Per capita means by heads: the estate is divided by the number of persons entitled, and each takes an equal share.

Per stirpes means by stocks, or by branches: the estate is divided by the number of branches, and the people in each branch share what that branch takes.

The Act's general rule is per capita, and it is the exception that matters: section 10, Rules 3 and 4, and section 16, Rule 2, are per stirpes, because they give a pre-deceased child's branch one share to divide. That is what the words "save as otherwise expressly provided" are pointing at.

So a question asking whether succession under the Act is per capita or per stirpes has a two-part answer: per capita as a rule, per stirpes where a pre-deceased child's branch takes by representation.

Tenants in common

Clause (b) is short and important. Heirs take as tenants in common, so each holds a defined and separate share which he may sell or will away, and there is no survivorship between them. On the death of one, his share goes to his own heirs.