Succession to the Property of a Hindu Male Dying Intestate

The Explanation provides that references to a brother or sister do not include a brother or sister by uterine blood.

The father is in Class II, entry I, and not in Class I. The mother is a Class I heir and the father is not. That asymmetry is deliberate and it is asked about: a father takes nothing if there is a single son, daughter, widow or mother.

Section 10: distribution among Class I heirs

Section 10 lays down four rules.

Rule 1. The intestate's widow, or if there are more widows than one, all the widows together, shall take one share.

Rule 2. The surviving sons and daughters and the mother shall each take one share.

Rule 3. The heirs in the branch of each pre-deceased son or each pre-deceased daughter shall take between them one share.

Rule 4. That branch share is distributed:

(i) in the branch of a pre-deceased son, so that his widow, or widows together, and his surviving sons and daughters get equal portions, and the branch of each of his pre-deceased sons gets the same portion; and

(ii) in the branch of a pre-deceased daughter, so that her surviving sons and daughters get equal portions.

How to apply it

Step one: count the shares. One for all the widows together, one each for every surviving son, every surviving daughter and the mother, and one for each branch of a pre-deceased son or daughter.

Step two: divide the estate by that number.

Step three: split each branch share among the people in that branch under Rule 4.

Note the asymmetry in Rule 4, because it is examinable. In a son's branch the widow shares; in a daughter's branch only her sons and daughters share, and her husband takes nothing.

A worked example

These are the shapes MU actually sets.

Example 1: the simple case

X, a Hindu male, dies intestate leaving a widow W, two sons S1 and S2, one daughter D, and his mother M.

Shares: W takes one; S1, S2, D and M take one each. Five shares.

Each takes one fifth.

Example 2: a pre-deceased son

X dies leaving a widow W, a son S, and the widow and two children of a pre-deceased son PS.

Shares: W one; S one; the branch of PS one. Three shares.

W takes one third, S takes one third, and the remaining one third is divided under Rule 4(i) among PS's widow and his two children equally, so one ninth each.

Example 3: MU's February 2023 problem

Mr X, a Hindu male, dies intestate leaving a son, a daughter, the daughter of a pre-deceased daughter of a pre-deceased daughter, and a brother B.

The son and the daughter are Class I heirs. The daughter of a pre-deceased daughter of a pre-deceased daughter is also a Class I heir, by the entry added in 2005. The brother is Class II and therefore takes nothing, because Class I heirs exclude all others.

Shares: the son one, the daughter one, and the branch of the pre-deceased daughter one. Three shares, one third each, and the branch share goes to the one surviving person in it.

The second limb of that question asks what happens if B had murdered X. The answer is section 25, in [Disqualifications Relating to Succession]: B is disqualified, and by section 27 the property devolves as if he had died before the intestate. He was taking nothing in any event, being Class II, so on these facts the disqualification changes nothing, and saying so is the complete answer.

Example 4: no Class I heir at all

X dies leaving no widow, no children, no mother, but a father, a brother and a sister.

Class I is empty. Class II applies. The father is entry I and is preferred to every later entry, so the father takes the whole, and the brother and sister, who are in entry II, take nothing.

Sections 11, 12 and 13

Section 11: distribution among Class II heirs. The property is divided between the heirs specified in any one entry of Class II so that they share equally.

Section 12: the order among agnates and cognates. Three rules of preference:

Rule 1. Of two heirs, the one who has fewer or no degrees of ascent is preferred. Rule 2. Where the degrees of ascent are the same or none, the heir with fewer or no degrees of descent is preferred. Rule 3. Where neither is preferred under Rule 1 or Rule 2, they take simultaneously.

The rules are applied in that order, and the principle is easy to state: descent beats ascent. An heir who is reached by going down the family tree is preferred to one reached by going up, and among those you go up to, the shorter climb wins.

Section 13: computation of degrees.

(1) Relationship is reckoned from the intestate to the heir, in terms of degrees of ascent, degrees of descent, or both. (2) Degrees of ascent and descent are computed inclusive of the intestate. (3) Every generation constitutes a degree, ascending or descending.

So the intestate himself is the first degree. His son is the second degree of descent; his father is the second degree of ascent.

What it does NOT mean

Class I heirs do not take in any order among themselves. They take simultaneously, and they exclude everybody in the later rungs.

Class II is not a single class. Only the highest occupied entry takes; heirs within one entry share equally, and a lower entry takes nothing.

Section 10 does not give every heir an equal share. All the widows together take one share; each son, each daughter and the mother take one each; and each pre-deceased child's branch takes one share, however many people are in it.

A branch does not divide alike in both cases. In a pre-deceased son's branch the share is split among his widow and children; in a pre-deceased daughter's branch, among her children only.

"Agnate" and "cognate" are not the third and fourth classes of the Schedule. They are the third and fourth rungs of section 8, and they are reached only when both Classes of the Schedule are empty.

Degrees are not counted from the heir. By section 13, computation begins from the intestate, and the intestate himself is reckoned as the first degree.

Fewer degrees of ascent is not the only rule. Where the ascent is equal, the one with fewer or no degrees of descent is preferred; where both are equal they take together.

The father is not a Class I heir. He is entry I of Class II.

Quick revision

• s.8: four rungs, and each is reached only if the one above is empty: Class I of the Schedule; then Class II; then agnates; then cognates.
• s.9: Class I heirs take simultaneously and to the exclusion of all others; among Class II, those in the first entry are preferred to those in the second, and so on.
• Class I now includes son, daughter, widow, mother, the children and widow of a pre-deceased son and of a pre-deceased daughter, the further descendants added in 2005, and so on.
• Class II: nine entries, beginning with the father.
• s.10: Rule 1, the widow, or all the widows together, take one share; Rule 2, each surviving son, daughter and the mother take one share each; Rule 3, each branch of a pre-deceased son or daughter takes one share; Rule 4, in a son's branch the share goes among his widow and living children, in a daughter's branch among her children.
• s.11: Class II heirs in one entry share equally. s.12: agnates and cognates are ranked by fewer degrees of ascent, then fewer or no degrees of descent, then together. s.13: degrees are computed from the intestate, who is himself the first degree.

Test yourself

1. What is the order of succession to the property of a Hindu male dying intestate? First upon the heirs in Class I of the Schedule; if there are none, upon the heirs in Class II; if there are none, upon his agnates; and if there are none, upon his cognates. That is section 8.

2. How do Class I and Class II heirs differ in the way they take? Class I heirs take simultaneously and to the exclusion of all other heirs. Among Class II heirs, those in the first entry are preferred to those in the second, those in the second to those in the third, and so on, and heirs within one entry share equally.

3. A Hindu male dies leaving two widows, a son, a daughter and the children of a pre-deceased son. How is the estate divided? Under section 10, the two widows take one share between them; the son takes one; the daughter takes one; and the pre-deceased son's branch takes one share, divided among his widow and living children. So the estate is divided into four shares.

4. How are agnates and cognates ranked? Under section 12, an heir with fewer or no degrees of ascent is preferred; where the degrees of ascent are the same or none, the one with fewer or no degrees of descent is preferred; and where neither is preferable they take together. By section 13, degrees are computed inclusive of the intestate, who is himself reckoned as the first degree.