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You are on page 70of 115

Rule 1 lays down
that out of two
agnates or two
cognates as
the case maybe,
the one with the
feweror no degree
of ascent shall be
preferred. Rule 2
lays down that
where the degree
of ascent is
thesame or none,
the one with
fewer or no
degree of descent
shall be preferred.
Rule 3 lays down
thatin case of a tie
even after
applying Rules 1
and 2, they shall
take
simultaneously. In
accordancewith
the above three
rules, the agnate
and cognate
relationship
maybe
categorized as
follows:Agnates:
(a) agnates who
are descendants,
for example,
son’s son’s son’s
son and son’s
son’s daughter.

(b) agnates who

are ascendants,
for example,
father’s father’s
father and father’s
father’s mother.
 (c) agnates who
are collaterals, i.e.
who are related to
the intestate by
degrees of both
ascent and
descent, for
example, father’s
brother’s son and
father’s brother’s
daughter.
Cognates:(a)
cognates who are
descendants, for
example, son’s
daughter’s son’s
son and
daughter’s
son’sson’s son.

(b) cognates who

are ascendants,
for example,
father’s mother’s
father and
mother’s father’s
father.(c)
cognates who are
collaterals, i.e.
who are related to
the intestate by
degrees of both
ascent and
descent, for
example, father’s
sister’s son and
mother’s
brother’s son.
In both the cases,
relatives (both
agnates and
cognates) falling
in a higher
subcategory shall
be preferred to a
lower subcategory
i.e. descendants s
hall be preferred
over ascendants
who in turnshall
be preferred over
collaterals.Section
13. Computation
of degrees.-1) For
the purpose of
determining the
order of
succession among
agnates or
cognates,
relationshipshall
be reckoned from
the intestate to the
heir in terms of
degrees of
ascent or degrees
of descentor both,
as the case may
be.2) Degrees of
ascent and
degrees of descent
shall be computed
inclusive of the
intestate.3) Every
generation
constitutes a
degree either
ascending or
descending.Sectio
n 13 lays down
the rules for
computation of
relationship
between the
intestate and his
agnateand
cognate heirs.
This relationship
is traced from the
intestate to the
heir in terms of
degrees of
relationship with
the intestate as the
starting point.
There is no
discrimination or
preference betwee
n male and female
heirs.The second
rule states that the
computation of
the degrees of
ascent and
descent are to be
madeinclusive of
the intestate. The
relationship is to
be traced from the
propositus on
terms of
degreeswith a
propositus as
terminus a quo,
i.e. the first
degree.However,
the order of
succession among
agnates and
cognates is not
determined
merely by thetotal
number of
degrees of ascent
and descent. It is
subject to and
regulated by
Section 12 of
theAct. The
following are
examples of rules
of computation of
degrees:
(a) The heir to be
considered is the
father’s mother’s
father of the
intestate. Hence
there is no
degree of descent
but there are four
degrees of ascent
represented by (i)
the intestate, (ii)
the
intestate’s father,
(iii) that father’s
mother and (iv)
that mother’s
father.

(b) The heir to be

considered is the
son’s daughter’s
son’s daughter of
the intestate.
Hence there is
no degree of
ascent but there
are five degrees
of descent
represented by (i)
the intestate, (ii)
the
intestate’s son,
(iii) that son’s
daughter, (iv) that
daughter’s son
and (v) that son’s
daughter.
(c) The heir to
be considered is
the mother’s
father’s sister’s
son (i.e.
the mother’s
father’s father’s
daught
er’s son) of the
intestate. He has
four degrees of
ascent represented
in order by (i)
theintestate, (ii)
the intestate’s
mother, (iii) that
mother’s father
and (iv) that
father’s father and
two
degrees of descent
i.e. (i) the
daughter of the
common ancestor
and (ii) her son
(the heir).What is
to be remembered
is that when
degrees, both of
ascent and
descent, are to be
computed incase
of collateral, the
degrees of ascent
computed from
the intestate are
inclusive of him,
but incounting the
degrees of descent
from the ancestor,
only generations
of descent are
computed, thatis,
the ancestor does
not constitute a
degree of descent.
Succession Of A
Hindu Female
Dying Intestate
Under The Hindu
Succession Act
The great ancient
lawgivers Manu
and
Baudhyana had
described the
good woman as a
profoundlynon-
autonomous self,
ruled by father in
childhood, by
husband in youth,
by son in old age.
In the19th century
debates, on the
contrary, she
came to be re-
envisaged as a
person with a core
ofinviolate
autonomy,
possessing a
cluster of
entitlements and
immunities, even
when the
family,the
community or
religion refused to
accept them. The
demand for the
new laws
stemmed from
anunderstanding
about Indian a
necessary,
autonomous core
of female
personhood that
the state
mustunderwrite.
Under the Hindu
law in operation
prior to
the coming into
force of the Act, a
woman’s
ownership
of property was
hedged in by
certain
delimitations on
her right of
disposal and also
on
hertestamentary
power in respect
of that property.
Doctrinal
diversity existed
on that
subject.Divergent
authorities only
added to the
difficulties
surrounding the
meaning of a term
to which itsought
to give technical
significance.
Women were
supposed to, it
was held and
believed,
not have power of
 absolute alienatio
n of property. The
restrictions impos
ed by the Hindu la
w on the proprieta
ry rights of
women
depended upon
her status as a
maiden, as a
married woman
and as awidow.
They also
depended upon
the source and
nature of
property. Thought
there were some
fragmented
legislation upon
the subject
(regard being
made to the
Hindu Woman’s
Right to
Property Act,
1937), the settled
law was still short
of granting a
status to woman
where she
couldacquire,
retain and dispose
off the property as
similar to a
Hindu male. The
Hindu Succession
Act,1956 and
particularly
Section 14
brought
substantial
change, thus,
upon the aspect of
a right of aHindu
female over her
property and
thereby settled the
conflict.Section
15. General rules
of succession in
the case of female
Hindus.-(1) The
property of a
female Hindu
dying intestate
shall devolve
according to the
rules set out
inSection 16,-(a)
Firstly, upon the
sons and
daughters
(including the
children of any
pre-deceased son
ordaughter) and
the husband;(b)
Secondly, upon
the heirs of the
husband ;(c)
Thirdly, upon the
mother and
father;(d)
Fourthly, upon
the heirs of the
father; and(e)
Lastly, upon the
heirs of the
mother .(2)
Notwithstanding
anything
contained in Sub-
Section (1), -(a)
Any property
inherited by a
female Hindu
from her father or
mother shall
devolve, in
theabsence of any
son or daughter of
the deceased
(including the
children of any
pre-deceased son
ordaughter) not
upon the other
heirs referred to
in sub-Section (1)
in the order
specified therein,
butupon the heirs
of the father;
and(b) Any
property inherited
by a female
Hindu from her
husband or from
her father-in-law
shalldevolve, in
the absence of
any son or
daughter of the
deceased
(including the
children of
any predeceased
son or daughter)
not upon the
other heirs
referred to in sub-
Section (1) in the
orderspecified
therein, but upon
the heirs of the
husband.This
Section
propounds a
definite and
uniform scheme
of succession in
the property of a
femaleHindu who
dies intestate after
the
commencement
of the Act. The
rules laid down
under this
Section are to be
read with Section
16. This Section
groups the heirs
of a female
intestate into
fivecategories as
laid in sub-
Section
(1).However sub-
Section (2),
similar to the
scheme of Section
14, is in the
nature of an
exception tothe
general rule as
laid in sub-
Section (1). The
two exceptions
are, if a female
dies without
leavingany issue
then,(i) in respect
of property
inherited by her
from her father or
mother, that
property will
devolve
notaccording to
the order laid
down as in sub-
Section (1) but
upon the heirs of
her father, and(ii)
in respect of the
property inherited
by her from her
husband or father-
in-law, that
property willnot
devolve according
to the order laid
down in sub-
Section (1) but
upon the heirs of
her husband.It is
important to note
that the two
exceptions herein
referred are
confined to only
the
propertyinherited
from the father,
mother, husband
and father-in-law
of the female and
does not affect
the property acqui
red by her by gift
or other by other
device. The Secti
on has changed th
e entireconcept of
stridhana and the
mode and manner
of acquisition of
property by the
female,
whichearlier
determined how
the property
would be
inherited, has
been changed and
amended by
theSection.
Considering
Section 17, it is
important to note
that Section 16
does not apply to
personsgoverned
by
Marumakkattaya
m and
Aliyasantana
laws.As specified
in the beginning
of the sub-Section
(1), in the
devolution of
heritable property
of afemale
intestate, those in
a higher entry are
preferred to those
in a lower
entry.The order of
succession, as by
the effect of rules
under Section
15 can be
summarized as
follows:(1) the
general order of
succession laid
down in entries
(a) to (e) in sub-
Section (1)
applies to
all property of
a female intestate
however acquired
except in case of
property
inherited by her
fromher father,
mother, husband
or father-in-
law.(2) In case of
a female intestate
leaving a son or a
daughter or a
child of a
predeceased son
or of
a predeceased
daughter, that is
leaving any issue,
all her property,
howsoever
acquired,
devolves onsuch
issue regardless of
the source of
acquisition of the
property and such
issue takes the
propertysimultane
ously; and if the
husband of the
intestate is alive
they take
simultaneously
with him
inaccordance with
entry (a). In such
a case, sub-
Section (2) does
not apply.
(3) In case of a
female intestate
dying without
issue but leaving
her husband, the
husband will
takeher property,
except property
inherited by her
from her father or
mother which will
revert to theheirs
of the father in
existence at the
time of her
death.(4) In case
of female intestate
dying without
issue property
inherited by her
from her husband
orfather-in-law
(the husband
being dead), will
go the heirs of the
husband and not
in accordance
withthe general
order of
succession laid in
sub-Section
(1).(5) In case of
a female intestate
dying without
issue property
inherited by her
from her father
ormother will
revert to the heirs
of the father in
existence at the
time of her death
and not
inaccordance with
the general order
of succession laid
down in sub-
Section
(1).Section 16.
Order of
succession and
manner of
distribution
among heirs of a
female Hindu.-
Theorder of
succession among
the heirs referred
to in Section 15
shall be and the
distribution of the
intestate’s
property among th
ose heirs shall
take place
according , to the
following rules,
namely:Rule 1.-
Among the heirs
specified in sub-
Section (1) of
Section 15, those
in one entry shall
be preferred to th
ose in any succee
ding entry and tho
se including in the
same entry shall t
akesimultaneousl
y.Rule 2.- If any
son or daughter of
the intestate had
predeceased
the intestate
leaving his or her
own
children alive at
the time of the
intestate’s death,
the children of
such son or
daughter shall
take
between them the
share which such
son or daughter
would have taken
if living at the
intestate’s
death.Rule 3.-
The devolution of
the property of
the intestate on
the heirs referred
to in clauses (b),
(d)and (e) of sub-
Section (1) and in
sub-Section (2) to
Section 15 shall
be in the same
order and
according to the
same rules as
would have
applied if the
property would
have been the
father’s,the
mother’s or the
husband’s as the
case maybe, and
such person had
died intestate in
respectthereof
immediately after
the intestate’s
death.
Rule 1 explicitly
declares that
among the heirs
enumerated in
entries (a) to (e)
of Section 15,
thoseheirs
referred to in
prior entry are to
be preferred to
those in any
subsequent entry
and thoseincluded
in the same entry
are to succeed
simultaneously.R
ule 2 states that in
case of the
children of a
predeceased son
or daughter, they
shall not take
percapita with the
son and daughter
of the intestate
but shall take per
stripes i.e. the
children and
the predeceased
son or
daughter shall
succeed to the
property of the
intestate as if the
predeceased sonor
daughter was
alive at the time
of inheritance.
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