What is intestate succession? Explain the general rules.

Intestate succession is the process by which the property of a person who dies without making a will — the intestate — devolves upon his or her heirs according to the rules laid down by statute. Under the Hindu Succession Act, 1956, it is the cornerstone of the entire scheme of inheritance for Hindus, replacing the diverse and often irreconcilable rules of the Mitakshara, Dayabhaga, and matrilineal schools with one uniform framework based on the principle of propinquity — that is, preference of heirs on the basis of proximity of relationship and natural love and affection.

The Concept of the Intestate

A person is said to die intestate in respect of any property for which he or she has not made a testamentary disposition capable of taking effect. This definition, contained in Section 3(g) of the Act, makes an important point: a person may be partly testate and partly intestate. Where a will covers only some property, the remaining estate devolves by intestate succession. An heir under the Act means any person, male or female, entitled to succeed to the property of the intestate under its provisions. The Act provides two distinct schemes of succession — one for a male intestate and another for a female intestate — a unique feature that sets Hindu succession law apart from every other system of inheritance in India.

Succession to the Property of a Male Hindu

The heirs of a Hindu male are grouped into four broad categories that are applied in strict sequential order. Class I heirs are the most preferred, and so long as even a single Class I heir is alive, no heir in any subsequent category can inherit. The Class I heirs include the son, daughter, widow, mother, son of a predeceased son, daughter of a predeceased son, son of a predeceased daughter, widow of a predeceased son, and several other representatives of predeceased branches — the last several additions being introduced by the Hindu Succession Amendment Act, 2005. The distinguishing feature of Class I heirs is that they are simultaneous heirs — they all inherit together, and no one among them excludes another.

Upon failure of all Class I heirs, the estate devolves upon Class II heirs, arranged in nine entries. The critical rule here is different: heirs in an earlier entry exclude those in a later entry entirely. The father stands alone in Entry I. Entry II includes the son's daughter's son, the son's daughter's daughter, the brother, and the sister, all of whom inherit together. The brother's son, sister's son, and others follow in later entries. If no Class II heir is available, the estate passes to agnates — persons related to the intestate wholly through males — and if agnates also fail, to cognates, where the relationship passes through one or more females. As a last resort, under Section 29, the property escheats to the Government, which takes it subject to all obligations that an heir would have borne.

The General Rules of Succession

Sections 18 to 22 of the Hindu Succession Act, 1956 lay down a set of general principles that govern the distribution of property across both categories of intestates.

Full blood preferred over half blood. Section 18 provides that an heir related to the intestate by full blood is preferred over an heir related by half blood, provided the nature of the relationship is the same in every other respect. Full blood means descent from the same father and mother; half blood means descent from a common father but different mothers. In no case does the Act recognise uterine blood relatives — those related through the same mother but different fathers — as preferable to agnates.

Per capita and tenancy-in-common. Section 19 lays down two foundational rules for simultaneous heirs. First, they take per capita — that is, by the head, each taking an equal share — unless the Act expressly provides otherwise. Second, they take as tenants-in-common and not as joint tenants. This means each heir's share is a determinate, separate portion that devolves upon his or her own heirs upon death, and no right of survivorship operates. This was a significant departure from classical Mitakshara law, under which a coparcener's undivided interest traditionally passed to surviving members by survivorship.

The doctrine of representation, however, is an important exception to per capita distribution. Where a son or daughter predeceases the intestate but leaves behind children, those children collectively take the share their parent would have taken — they divide that share equally inter se but not equally with the other primary heirs. This is the per stirpes principle operating within an otherwise per capita framework.

Posthumous children. Section 20 specifically protects the rights of a child who was in the womb at the time of the intestate's death. Such a child, if born alive, has the same right of inheritance as if born before the death of the intestate, and the inheritance is deemed to vest in it from the date of the intestate's death.

Simultaneous deaths. Section 21 addresses a practical problem that arises when two persons die in circumstances rendering it uncertain which of them survived the other — as in a road accident or a natural disaster. In such cases, the Act raises a presumption that the younger survived the elder. This presumption, modelled on the rule under the English Law of Property Act, 1925, applies to both testamentary and intestate succession and may be rebutted by clear evidence to the contrary.

Preferential right of co-heirs. Section 22 introduces a right akin to pre-emption in favour of Class I co-heirs. If two or more Class I heirs inherit immovable property or a business simultaneously, and one of them proposes to transfer his or her share to an outsider, the remaining co-heirs have a preferential right to acquire that share. If they cannot agree on a price, the court determines it. If more than one co-heir wishes to purchase, the highest offer prevails. The transfer is not void but voidable at the instance of co-heirs who were denied their preferential right, and the right must be exercised within the period of limitation prescribed under the Limitation Act.

Disqualifications of Heirs

The Act recognises only three grounds for disqualifying an heir: murder, conversion of descendants, and — prior to the Amendment of 2005 — remarriage of certain widows. Section 25 disqualifies a person who commits or abets the murder of the intestate, or who murders any other person in furtherance of succession, from inheriting the victim's property or any property to which the murder accelerated succession. The rationale is the ancient principle of public policy: nemo ex suo delicto meliorem suam conditionem facere potest — no person should profit from his own wrong. Section 26 disqualifies the children born to a Hindu after his or her conversion to another religion from inheriting the property of their Hindu relatives, unless those children are themselves Hindus at the time the succession opens.

Where any heir is disqualified, the operation of Section 27 ensures that the property devolves exactly as if the disqualified person had died before the intestate. Importantly, Section 28 removes all other historical disqualifications — disease, deformity, defect, and unchastity no longer disentitle any person from inheriting property.

Succession to the Property of a Female Hindu

The scheme for a female intestate under Section 15 reflects a distinctive and somewhat contested feature of Hindu law: it varies depending on the source from which the woman acquired her property and on whether she dies with or without issue. Her general property — everything except that inherited from parents, husband, or father-in-law — devolves first upon her sons, daughters, and husband, then upon the heirs of her husband, then upon her mother and father, then upon the heirs of the father, and lastly upon the heirs of the mother. The notable departure is that if she dies issueless, property inherited from her father reverts to the heirs of her father, and property inherited from her husband or father-in-law reverts to the heirs of her husband — a codification of the old idea that property should return to the family from which it came. This scheme, often criticised as giving disproportionate preference to the husband's family over a woman's own blood relatives, remains a live subject of academic and judicial debate.