How will the property of a Hindu male dying intestate devolve under the Hindu Succession Act, 1956?

The Governing Framework — Section 8

Section 8 lays down that the property of a male Hindu dying intestate shall devolve in the following order:

• Firstly — upon the heirs specified in Class I of the Schedule

• Secondly — if there is no Class I heir, upon the heirs in Class II of the Schedule

• Thirdly — if there is no heir of either class, upon the agnates of the deceased

• Lastly — if there is no agnate, upon the cognates of the deceased

And beyond even cognates, if none exists, the property escheats to the Government, which takes it as an heir subject to all the liabilities and obligations of the intestate.

The overarching philosophy is the principle of propinquity — preference based on proximity of relationship. The Act discards entirely the old Mitakshara and Dayabhaga categories of Gotraja Sapindas, Samanodakas and Bandhus, and replaces them with this fresh and uniform scheme.

First in Line — Class I Heirs

Class I heirs are the most preferred category. They are expressly called preferential heirs because the presence of even one of them excludes every heir in every lower category — Class II, agnates, and cognates alike. They are equally called simultaneous heirs because no one Class I heir excludes another; they all inherit together at the same time.

The distribution among them follows Section 10, which operates on the principle of branches. The surviving sons, daughters, and mother each take one share per head. The widow (or all widows together, in cases of pre-Act plural marriages) takes one share collectively. Where a son or daughter had predeceased the intestate leaving behind their own children, those grandchildren step in to represent their parent's branch and collectively take the one share their parent would have taken — this is the doctrine of representation, and it makes the distribution per stirpes at the branch level, though per capita within each branch.

Second in Line — Class II Heirs

If not a single Class I heir survives the intestate, the property falls to Class II heirs, who are arranged across nine Entries. The rule here is strict and absolute: an heir in a prior Entry takes to the complete exclusion of all subsequent Entries. Within the same Entry, however, all heirs share equally and per capita.

The father stands alone in Entry I. Had the drafters followed strict proximity of blood, the father would logically have been placed alongside the mother in Class I — but the Mitakshara tradition viewed the mother as having a closer claim than the father, and that sentiment was carried forward into the Act. After the father come, in successive entries, the son's daughter's son, brother, and sister (Entry II); the daughter's grandchildren (Entry III); the children of brothers and sisters (Entry IV); the paternal grandparents (Entry V); the step-mother and brother's widow (Entry VI); the paternal uncle and aunt (Entry VII); the maternal grandparents (Entry VIII); and the maternal uncle and aunt (Entry IX).

One important qualification runs through the entire Class II structure: Section 18 provides that full blood is always preferred to half blood, provided the nature of the relationship is otherwise the same. Uterine relatives — those related only through a common mother but different fathers — are expressly excluded from the Schedule altogether, by the Explanation appended to it, though they may later succeed as cognates.

Third in Line — Agnates

If no heir of Class I or II survives, the property passes to the deceased's agnates — those who are related to him by blood or adoption wholly through males, as defined in Section 3(a). The sex of the heir is immaterial; what matters is that every link in the chain of relationship be traced through males. So a father's brother's daughter is an agnate, but a father's sister's son is not, because a female (the father's sister) has intervened in the line.

There is no exhaustive list of agnates in the Act — the field is open-ended, with no upper limit on remoteness. The order of succession among them is regulated by Sections 12 and 13, which apply rules of preference based on degrees of ascent and descent. Descendants are preferred over ascendants who are preferred over collaterals; and among those of equal degree, they take simultaneously and per capita. Full blood is preferred to half blood where the degree of relationship is otherwise the same.

Last Resort — Cognates

Only after every agnate fails does the property reach the cognates — those related to the intestate by blood or adoption but not wholly through males, meaning that at least one female appears somewhere in the chain of relationship. The maternal uncle, the sister's son, the mother's mother — all of these are cognates. The rules of preference and computation of degrees are the same as for agnates under Sections 12 and 13, with one critical over-riding rule: an agnate, however remotely connected, is always preferred over any cognate.

Mode of Holding — Tenants-in-Common

One final general rule deserves attention. Section 19 provides that when two or more heirs succeed together, they take the property per capita (not per stirpes, unless expressly provided) and as tenants-in-common, not joint tenants. This means each heir holds a specified, defined share in the property, which passes to his or her own heirs on death — as opposed to joint tenancy, where a surviving co-owner would take by survivorship. The Act thus severs the old Mitakshara instinct of survivorship from the inheritance of separately held property. The Supreme Court confirmed in Commissioner of Wealth-tax v. Chander Sen (AIR 1986 SC 1753) that property inherited by a son under Section 8 is his separate individual property and does not become coparcenary property in his hands vis-à-vis his own sons.