Succession

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SUCCESSION OF HINDU MALE PROPERTY By Shuja Haider Rizvi BA LL.B (H) 5th Sem, JMI

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Acknowledgement For the successful completion of this project, I would like to thank my teacher Dr Kahkashan Danyal. She made the concepts of the topic so clear in my mind that it became very easy for me to work on the topic. It would not have been possible to complete the project work without his guidance.

Last, but not the least I would like to thank my Parents who stood by me through every thick and thin.

SHUJA HAIDER RIZVI

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CONTENT             

Introduction Customary rules of Succession S.3, Hindu Succession Act Legitimate and Illegitimate relationship Succession to Hindu Male Heir of Hindu Male S.8, Hindu Succession Act Class I heirs Class II heirs S.11, Hindu Succession Act Agnates and Cognates S.12, Hindu Succession Act Order of Succession among Agnates and Cognates

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Introduction

The Hindu Succession Act, 1956 has undergone a lot of change by virtue of Hindu Succession (Amendment) Act, 2005 (39 of 2005). The Section 6 of the said Act has been totally replaced by a new provision. This new provision has wide sweeping ramifications on Hindu Joint Family. This Amendment is based on the 17th Report of Law Commission of India on ‘Property Rights of Women: Proposed Reforms under Hindu Law’ under the Chairmanship of Justice B.P Jeewan Reddy dated 5th May, 2000. This Commission recommended for the removal of anomalies and ambiguities with regard to property rights of Hindu women under the Act of 1956. As per the view of the Law Commission, the exclusion of daughters from participating in coparcenary property ownership merely by reason of sex was unjust. Therefore, this Amending Act gives full-fledged property rights to daughters in ancestral property along with sons. Also the Mitashara dual mode of devolution of property has also been done away with. According to Section 6(3) of the Act of 2005, the interest of a deceased Hindu dying after commencement of the Act of 2005 shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. This Act has added certain close cognates in this list of Class I heirs, viz., and predeceased granddaughter’s children. Also two sections. Viz., Sections 23 and 24 which discriminated against women have been omitted by the Amending Act of 2005. Section 23 had special provision with regard to dwelling house. According to it, if a Hindu died intestate leaving behind both male and female heir in Class I and property left behind him/her includes a dwelling house wholly occupied by his/her family then the female heir did not have a right to claim partition of the property till entitled to a right of residence in the dwelling house only if she was unmarried or had been deserted or separated from her husband or was a widow. Section 24 disqualified certain widows, viz., widow of a predeceased son window of predeceased son and bother’s widow if they remarried on or before the date of succession to the intestate opened. The son’s pious obligation to pay his father’s debts has also been abolished by this

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amendment by virtue of sub-section (4). Happily, the Hindu law of succession does not hold a student in awe any longer, as it used to be about five decades ago. There are no longer two schools of Hindu Law basing their inherence on fundamentally different principles; no longer are these different sub-school of the Mitakshara creating complications in the detailed working of the Mitakshara rules of Succession; and no longer are there customs modifying law of succession and adding to complication. Today, we have one uniform law of succession for all Hindus. Old Hindu law and customary law of succession stand abrogated.1 This does not mean that we have made a total departure from the old law. The old framework has been retained. The basic classification of inheritance to the property of a Hindu female and Hindu male still exists. The Mitakshara bias of preference of males over females and of agnates over cognates has been considerably whittled down, but as we have to go to remoter heir, the rule of agnatic preference reasserts itself. Women’s estate and reversioner have been abolished, but who will inherit woman’s property, and thus the concept of reversionary inheritance lurks in the background. The doctrine of representation has been retained in respect of male heirs upto three degree of descent- it has been extended to cognate descendants also but not fully. The per stirpes rule of succession is retained in respect of Class I heirs, but in respect of others heirs, per capita rule is applied. Customary rules of successionIn some tribes the Chudabanth (wife-wise determination of shares) prevails. Such a custom is tribal and not territorial.2 The Hindu Succession Act preserves the dual mode of devolution of property under the Mitakshara School. The joint family property still devolves by survivorship with this important exception that rule of succession will apply to a Mitakshara coparcener is he dies leaving behind mother, widow, daughter, daughter’s daughter, son’s daughter, son’s son’s daughter, son’s widow, and daughter’s son. The Hindu Succession Act, 1956, bases its rule of succession on the basic Mitakshara 1 Section 4, Kesharbai v. State of Mah., 1981 Bom. 115. 2 Hardan Singh v. Deputy Director, Consolidation, 1992 S.C. 1009.

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principle of propinquity, i.e., preference of heirs on the basis of proximity of relationship. The Mitakshara limited the effect of the principle by the twin rules of exclusion of females and of agnatic preference. The rule of exclusion of females has been done away with, while the rule of agnatic preference has been considerably modified so far as it concerns the nearer relation. The Dayabhaga principle of religious efficacy has been abrogated. The modern Hindu law of succession is essentially a secular law. Religious or spiritual considerations figure nowhere. A person, so long as he is alive, is free to deal with his property in any way he likes. He is, by making a will, free to lay down his own scheme of distribution of his property after his death. This is known as a testamentary disposition. If he dies without leaving a will, it is the purpose of the law of inheritance to determine the persons who will take his property. In our contemporary world, someone must be the owner of the property, an individual, corporate person or state. The law of succession is classified a under: 1. Testamentary succession, and 2. Intestate succession. The law of testamentary succession is concerned how best the effect could be given to the wishes of the testator (i.e., the person who made the will); what are the rules relating to making of a will and allied and subsidiary matters. The testator enjoys full freedom of bequeathing his property. The law of intestate succession is concerned with matters as such as: who are the persons entitled to take the property, i.e., who are the heirs; what are the rules of preference among the various relations, in what manner the property is to be distributed in case a person has more than one heir; what are the disqualifications of heirs and the allied and subsidiary matters. The law of intestate succession is more properly the law of inheritance. The law of inheritance consists of rules which determine the mode of devolution of the property of the deceased on heirs solely on the basis of their relationship to the deceased, while law of testamentary succession deals with the rules relating to devolution of property on relations as well as others. This is the main distinction between the two terms, succession and inheritance. Apart from S. 30, which confers upon a person a power of disposing, his property including the undivided interest in the Mitakshara coparcenary property3 the Hindu Succession Act, 1956, 3 Puna v. Babana, (1971) 28 C.I.J. 387.

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deals with intestate succession among Hindus. We would discuss the subject under following heads: (1) Succession to a Hindu male, (2) Succession to a Hindu female, (3) Disqualifications of heirs, and (4) General rules of succession. Succession opens at the time of the death of the person whose estate is in question and is governed by this law in force at this time.4

Line of succession quo settlement cannot be created by Hindu- Now a Hindu can dispose of his property by a settlement or otherwise in any manner known to Hindu law. But he cannot lay down a line of succession against the Hindu Law of Inheritance. This has now been settled by a series of decisions beginning from the Judicial Committee’s decision in Tagore v. Tagore5. A Hindu can ofcourse of succession by making a transfer inter vivos including a gift or an executory gift or by a testamentary disposition in the form of will. He can also create a trust. These are modes of disposition recognized by Hindu Law. A Hindu can also enter into a family settlement deed in this case is that each of the parties would have a half share is valid and binding and its validity is not being challenged. But a Hindu cannot create an estate unknown to Hindu Law or lay down in the deed of settlement of his property a line of succession against the principles of Hindu Law of Inheritance. For in doing so he would be legislating.6 Before we proceed further, it is necessary to understand the meaning of certain terms. S.3, Hindu Succession Act- Intestate- A person who dies without making a will is known as ‘intestate’. Clause (g) of Section 3 of the Act, runs: “A person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect.” Heir4 Daddo v. Raghunath, 1979 Bom. 176. 5 (1872) Ind. App. Sup. Vol. 47: 16 W.R 359. 6 Brijendra Pratap Singh v. Prem Lata Singh, AIR 2005 All 113.

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A person who is entitled to inherit property after the death of the intestate is known as heir. Clause (f) of S.3 of the Act runs: “Heir means any person, male or female, who is entitled to succeed to the property of interest under the Act”

DescendantsDescendants means the offspring’s of a person. Immediate descendants of a person are his sons and daughter. The children of sons and daughters and their children, and so on, are also descendants. A person may have descendants through his sons or daughters upto any degree of descent.

AscendantsAscendants of a person a known as ascendants. Immediate ascendants of a person are his father and mother. The father and mother of his father and mother are also his ascendants, and so are their parent’s upto any degree of ascent.

CollateralsCollaterals are descendants in parallel lines, from a common ancestor to ancestress. For instance, brother is a collateral, so is a sister. Similarly, paternal uncle and paternal aunt and their children, maternal uncle and maternal aunt and their children are collateral.

AgnatesWhen a person traces his relationship with another wholly through males, he or she is an agnate. For instance, brother, brother’s son, son’s son, son’s son’s son, father, father’s father, father’s mother, father’s father’s father of mother, son’s daughter, son’s son’s daughter, etc. are agnates. The sex of a person who traces his relationship with another is immaterial. What is material is that in between him or her and the common ancestor or ancestress, all persons through whom relationship is traced should be males.

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CognatesWhenever in the relationship of a person with another, a female (or more than one female) intervenes anywhere in the line, one is cognate to another. Number of cognates is larger than that of agnates.7 For instance, sister’s son and daughters, daughter’s sons and daughters, mother’s mother and father, father’s mother’s father and mother, mother’s father’s son and daughter are all cognates. Clause (c) of Sec 3(1), Hindu Succession Act, runs; ‘One person is said to be a ‘cognate’ of another if the two are related by blood or adoption but not wholly through males’. A cognate be a descendant, ascendant or collateral.

Full BloodWhen the father and the mother of two persons are the same, they are related to each other by full blood. According to s. 3(1) (e) (i), Hindu Succession Act, ‘Two persons are said to be related to each other by full blood when they are descended from common ancestor by the same wife.’ Thus, children of the same parents are children by full blood, e.g., brothers or sisters or a brother and a sister. In the common parlance, they are known as the ‘real brothers, the real sisters or the real brother and sister.

Half BloodWhen two persons have the same father but different mothers, they are related to each other by half blood. According to clause (e) (i) of S. 3 (1), Hindu Succession Act, two persons are said to be related to each other when they ‘are descendent from common ancestor but by different wives. For instance A marries Q and a son B is born to him from Q; Q dies and A marries R and a daughter C is born to him from R; A divorce R and marries S. A son D is born to him from S, B,C and D are related to each other as brother and sisters by half blood.

Uterine Blood7 Prabhu Dayal v. Suwaram, 1994 Raj. 149.

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When two persons have the same mother but different fathers, they are said to be related to each other by uterine blood. According to clause (e) (ii) of S. 3(1) of this Act, ‘Two persons are said to be related to each other by uterine blood when they are descendent from a common ancestress but by different husbands. ‘For example, P takes a husband S and from him she gets a son A. S dies and P remarries Y and gets a son B. Subsequently, she divorces him and takes another husband Z, and from him a daughter C is born to her. A, B and C are related to each other as brother and sister by uterine blood Legitimate and Illegitimate relationshipA person who is born within a lawful wedlock is legitimate, and he or she is related to his or her parents by legitimate relationship. A person born outside the lawful wedlock is illegitimate, and he or she is related to his or her parents by illegitimate relationship. It has been held that the child born out of live-in-relationship cannot claim a right.8 The illegitimate relationship is recognized to the mother. Section 3(1) (i) runs: ‘related, means related by legitimate kinship: Provided the illegitimate children shall be deemed to be related to their mother and to one another; and their legitimate descendants shall be deemed to be related to them and one another; and any word expressing relationship or denoting a relative shall be construed accordingly.’ A division bench of the Andra Pradesh High Court has declined to take the view that the proviso to Section 3(1) (i) should be confined to those children who do not become legitimate under Section 16, Hindu Marriage Act.9 Children of void and voidable marriages are entitled to succeed to their father,10 therefore, children of both the wives would be entitled to take benefits, though second wife would not be so entitled.11

Succession to Hindu Male

8 Bharatha Mata v. R. Vijaya Ramganathan, 2010 SC 2685. 9 Rasala v. Rasala, 1992 AP 234. 10 Rameshwari Devi v. State of Bihar, 2000 SC 375. 11 Nagarathamma v. Venateshamma, 2000 Kant 181.

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The Hindu Succession Act, 1956, deals with the inheritance to : (a) the separate properties of Mitashara Male, (b) to the separate and coparcenary properties of Mitashara male, and (c) to the undivided interest in the joint family property of a Mitashara coparcener , who dies leaving a widow, daughter, daughter’s daughter, son’s daughter, son’s widow, grandson’s daughter, grandson’s widow or daughter’s son. The Act does not apply to the property of a Hindu who is married under the Special Marriage Act, to any estate which descends to a single heir by the terms of any covenant of India or by the terms of any enactment passed before the commencement of the Hindu Succession Act and to the Valiamma Thampura Kovilagam Estate and the Palace Fund of former Cochin State. Heir of a Hindu Male Under the Act, heirs of a Hindu Male fall under the following heads: S. 8, Hindu Succession Act(I) Class I heirs, (2) Class II heirs, (III) Agnates, (IV) Cognates, and (5) Government.12. Class I and Class II heirs are sometimes also called enumerated heirs, since the Act enumerates them. Class I heirs are also called preferential heirs, as presence of anymore of them excludes heirs in all other classes. They are also called simulataneous heirs, as heirs in Class I inherit simultaneously one does not exclude the other. The old rules of propinquity have been retained with some modifications. The discriminatory rule of inheritance, i.e., the weightage given to an aurasa son over an adopted son, has been abrogated and replaced by the rule of equality. The privileged position of the dasiputra and a Sudra has been abolished and he is no longer an heir to his father. In the new scheme of heirs, the positions of females has been brought at par with agnates. 12 Under the old Hindu Law, before the property could go the government, one more class of heirs was recognized, the spiritual heirs. With the secularization of Hindu law of inheritance, they have been omitted. The Mitashara classification of heir into Sapinda. Samanodakas and Bandhus, as well as the Dayabhaga classification of them into Sapinda, Sakulyas and Samanodakas have been done away with.

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Class I Heirs In Class I Heir, we have following enumerations of heirs13: (i) Mother, (ii) Widow, (iii) Daughter, (iv) Son, (v) Widow of a predeceased Son, (vi) Son of a predeceased son, (vii) Daughter of a predeceased son, (viii) Widow of a predeceased son, (ix) Daughter of a predeceased son of a predeceased son, (x) Son of a predeceased daughter, (xi) Daughter of a predeceased son, (xii) Son of a predeceased daughter, (xiii) Son of a predeceased daughter of predeceased daughter, (xiv) Daughters of a predeceased daughter of a predeceased daughter, (xv) Daughter of a predeceased son of a predeceased daughter, (xvi) Daughter of a predeceased daughter of a predeceased son.14 Son, son’s son and son’s son’s sonSon means a legitimate son of the porosities. The special position of Sudra dasiputra has not been retained. This is on account of the definition of the word ‘related’ in S 3(1) (i) which lays down that as far as relationship is concerned with a male propitious ‘related’ means related by legitimate kinship. A legitimate son may be an aurana son or dattaka son. The adopted son takes an equal share with the aurasa son. An illegitimate child is not entitled to inherit.15 GharjamaiAmong the Sathals, Gharjamai has the status of a son. He is for all intents and purposes like an adopted son. In Ashok v. Rani Hembrom,16 it was held that he is entitled to succeed to his fatherin-law’s property like an adopted son. Posthumous sonA posthumous son is also included. Section 20 of the Act lays down that a child who was in the womb at the time of the death of the intestate and who is subsequently born alive has the 13 Sometime the expression children issues, heir carry the same meaning. 14 Added by Amendment Act of 2005. 15 Daddo v. Raghunath, 1976 Bom. 176. 16 1988 Pat. 129.

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same right of inheritance as if he was already born when propitious died. Under the Hindu Succession Act, 1956, the sons born after the partition and the divided sons inherit with other sons. A son of a voidable marriage is a full-fledged legitimate son and will inherit as such. But the son of void marriage and a son of a predeceased son of a predeceased son. However, grandson or great grandson will not succeed if the marriage of their father was void or annulled.17 Daughter, son’s daughter, son’s son daughterJust as in the case of a son, daughter means a legitimate daughter, born natural or adopted. If there are both natural born and adopted daughters, they inherit equally. An illegitimate daughter cannot inherit. A daughter also includes a posthumous daughter, but does not include a step daughter. The position of daughters of void and voidable marriages is the same as that of the sons. The distinction between married, unmarried and widowed daughters or between indigent and rich daughter is no longer cooperate. All daughters inherit and inherit equally.18 Unchasty of a daughter is no bar to inheritance. A divorced daughter is also entitled to inherit. Under the M.P Ceiling of Agriculture Holdings Act, 1960, major daughters of the deceased Bhaominder do not fall in the definition of daughter.19 The above applies to son’s daughter and son son’s daughter mutatis mutandis. The position of these daughters when marriage of their father is void or voidable is the same as of grandsons and great grandsons. A daughters who had received a gift of joint family property cannot be denied a share when succession opens up.20 Daughter’s son and daughter’s daughterBoth natural born and adopted children of a predeceased daughter are included. It seems that illegitimate daughters and sons of a daughter are also included. It seems that illegitimate daughters and sons of a daughter an also included. Proviso to clause (j) of S.3 says 17 Section 16, Hindu Marriage Act, 1955. 18 Ramesh Verma v. Lagesh Saxena, 1998 MP 46. 19 Sooraj v. Rehti, 1995 SC 872. 20 Meenaksharmma v. Nanjodappa, 1993 Kant. 12.

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that ‘illegitimate children shall be deemed to be related to their mother and one another. This means that the illegitimate children are related to their mother, i.e., daughter. The daughter’s children take the property representing her when she is dead. Widow, son’s widow, son’s son’s widowThe propositus widow means the wife of a valid marriage. If a male dies leaving behind only his widow after coming into force of the Act she would be the sole heir and would inherit absolutely.21 Thus, if the propositus marriage is void, the wife is not his lawfully wedded wife, and therefore she will not be his widow. The same is the position of the wife of the annulled voidable marriage. It is submitted that S.16, Hindu Marriage Act, 1955, confers a status of legitimacy on the children of annulled voidable marriage and not on the wife of such marriage. A divorced wife will also not be his widow. The same applies mutatis mutandis to son’s widow and son’s son’ widow. An unchaste widow can also inherit.22 If she remarries, she will not be divested of her husband’s inheritance. A son’s widow or a son’s son’s widow who has remarried on the date when succession opens cannot inherit. In the case of son’s widow and son’s son’s widow, unchastity is no bar. MotherMother is always a mother. Propositus may be her legitimate aurasa son, or adopted son or an illegitimate son, she will inherit. She may be unchaste, she might have remarried.23 She might have been divorced, she remains a mother, it is also immaterial whether he marriage with the propositus father was void or voidable. But the stepmother is not included in the expression ‘mother’ and she does not inherit in Class I heir, though she does so as Class II heir. Class II Heirs and their Share

21 Sadha Singh v. Gurudwara Sahib Narike, 2006 SC 3282. 22 Jayalakshari v. Ganevesa, (1972) 2 M.L.J. 50. 23 Gurdit Singh v. Darshan Singh, 1973 P. & H. 362.

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S.11, Hindu Succession Act- The Class II heirs are divided into nine categories. The rule is that an heir is in earlier category excludes all heir in later categories. All heirs in one category take simultaneously between them and take per capita. Merely because numerals have been used in some categories, such as in categories II, III, and IV, it does not indicate any preference of heirs in an earlier numeral over the heir in the later numeral. Thus, in category II, son’s daughter’s son bear numeral (1), it does not mean that son’s daughter in numeral (2), brother in numeral (3), sister in numeral (4) will be excluded.24 (I) Father Father is the only nearest heir who has not found a place in Class I. On the basis of propinquity, he should have figured in Class I, along with the mother. But such has been the Mitakshara notion of propinquity that under the Mitakshara law, mother was considered to have greater propinquity than the father.25 Thus, it seems, the Hindu Succession Act, 1956, gives effect to the Mitakshara rule of propinquity. Father is the sole heir in category I, and, in the absence of class I heirs, takes the entire property. (II) (I) Son’s Daughter’s Son. (II) Son’s Daughter’s Daughter. (III) Brother. (IV) Sister. Brother and Sister- “Brother” and “Sister” here include the following(a) Brother and Sister by full blood, and (b) Brother and Sister by half blood. Brother and Sister of equal ranks inherit equally.26 The rule is when there is any brother or sister 24 Satya v. Urmila, 1970 S.C. 1714. 25 Mitakshara, 11, 13; Vivada Chintamani also took the same view. 26 Krishna v. State of Haryana, 1994 SC 2536.

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by full blood, the brother or sister by half blood is excluded. When there is no brother and sister by full blood, the brother or sister by half-blood inherits. The rule of preference of brother and sister of full blood is in accordance with the Mitakshara. However, in Purshottam v. Shrippa,27, the Bombay High Court had held that view that a full brother excludes a half-brother and a full sister share excludes a half-sister, but where there is a brother of a half blood and sister of full blood, the former will not be excluded. The Division Bench took the view as it thought that the basis of classification of heirs was not nearness of the blood relationship. It is submitted that this is not correct. A Full bench has now overruled this view.28 The brother and sister by uterine blood are excluded.29 If the propositus and his brother and sister are all legitimate children of their mother, such brothers and sisters are heirs to him.30 All the heirs in this category inherit per capita.31 Since all heirs in this category share per capita, and all of them are heirs of this category, each will take one share. (III) (I) Daughter’s son’s son. (II) Daughter’s son’s daughter, (III) Daughter’s daughter’s son, (IV) Daughter’s daughter’s daughter. This is a simple category. This rule of the distribution of property is the same, all heirs in one category take per capita.

27 1976 Bom. 374. 28 Women Govind v. Gopal Baburao, 1984 Bom. 208 (F.B). 29 See explanation to the Schedule which says reference to a brother or sister do not include reference to a brother or sister do not include reference to a brother or sister by uterine blood. 30 Kumara v. Kunjulakshmi, 1972 Ker. 66. 31 Section 3(i), Hindu Succession Act.

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(IV) (I) Brother’s son, (II) Brother’s daughter, (III) Sister’s son, (IV) Sister’s daughter. Under this category, brother’s sons and daughters and sister’s son and daughters may be the children of the brothers and sisters by full blood or half blood. But they cannot be the children of brothers and sisters by uterine blood. But it is propositus and his brothers and sisters are all illegitimate children of their mother, then children of such brothers and sisters will be entitled to inherit. The rule is the same as in case of brothers and sisters. Children of brothers and sisters by full blood are preferred over children of sisters and brothers by half blood. All four heirs shall take 1/4th each. All heirs in this category take per capita. Father’s father and father’s mother do not include paternal step-grandfather or paternal step-grandfather. If they are adoptive parents of father, they will be excluded. When both of them are heirs, take per capita, i.e., ½ each.

(V)

(I) Father’s widow (II) Brother’s widow. Father’s widow means stepmother. She is the only step relation that is included among heirs. Even if she had remarried at the time when succession opens, she will inherit. According to Mitakshara, a stepmother did not succeed to her stepson. But she is, according to the Mitakshara, a gotraja sapinda and as such she could come after all his male sapinds. It was only in Bombay that she succeeded as gotraja sapinda, elsewhere in the Mitakshara jurisdiction, she did not succeed. Under the Dayabhaga School also, she did not succeed. The Hindu Succession Act seems to adopt the Bombay view. She succeeds along with the brother’s widow.

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A brother’s widow is not entitled to succeed if she had remarried on the date succession opens. If there are two brothers, they will take per capita. If there are more than one widow of the same brother, then also they will inherit per capita. Similarly, if there are more than one stepmother, they will take per capita. The rule that if there are more windows than one, they together take one share applies to Class I heirs. It does not apply to Class II heirs. (VI) (I) Father’s brother, (II) Father’s sister. Father’s brother and father’s sister may be by full blood or by half blood, but the rule is that so long as there is father’s brother or father’s sister by full blood, the father’s brothers or father’s sisters by half- blood do not succeed. The latter succeed on the failure of the former. Father’s brother or father’s sister by uterine blood is not included, but father’s sister or father’s brother by adoption is included. Thus, if there are father’s brother by natural birth and father’s sister by adoption, both will inherit and take simultaneously. (VII) (I) Mother’s brother. (II) Mother’s sister. The paternal uncle and paternal aunt are in category VII but maternal uncle and maternal aunt in category IX, the last category of class II heirs. The maternal uncles and maternal aunts by natural birth as well as by adoption are included. If maternal uncle is by natural birth and maternal aunt is by adoption or vice versa, both inherit simultaneously and take per capita. Both maternal uncle and maternal aunt by full blood and half-blood are included but the full blood excludes the half blood.

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Agnates and Cognate S.12, Hindu Succession ActAGNATES: When two persons are related to each other by blood or adoption but wholly through males, they are said to be agnates of each other. For example, a person is an agnate of his father’s brother’s son. It has been held that being related by blood does not mean being related by birth. Hence ‘agnate’ also includes relations by marriage. Therefore a father’s brother’s widow is an agnate of the deceased and entitled to his property. Similarly a father’s brother’s daughter would be an agnate. COGNATES: When two persons are related to each other by blood or adoption but not wholly through manes, they are said to be cognates of each other. For example, A’s father’s sister’s son would be a cognate of A. Similarly, A’s brother’s daughter’s son would be A’s cognate. It has been held that whenever a relationship of a person with another female (or more than one female) intervenes anywhere in the line, one is a cognate to another. Thus the daughter’s son and daughter and son’s daughter’s son and daughter are cognates. ORDER OF SUCCESSION AMONG AGNATES AND COGNATES: In case of non-availability of Class I and Class II heirs, the property of the deceased devolves upon his agnates and if there are no agnates, upon his cognates. Therefore when agnates are present, cognates would not get any share in the property of the deceased. However, if more than one agnates or cognates are present, then the order of succession among them is governed by the provisions of section 12 of The Hindu Succession Act, 1956. Sections 12 provides as under: 12. Order of succession among agnates and cognates. The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder:-

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Rule 1.-Of two heirs, the one who has fewer or no degrees of ascent is preferred. Rule 2.-Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent. Rule 3.-Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously. Rule 1: Of two heirs, the one who has fewer or no degrees of ascent is preferred. This rule says that of two heirs, the one who has fewer or no degrees of ascent is preferred means that an heir who claims as the descendant of the Hindu male who has died intestate or one who is in the nearer line to him is to be preferred to one who claims in a remoter line. Thus a son’s son’s son being a descendant in the line of the deceased is to be preferred to brother’s son’s son who comes in father’s line which is remoter than one’s own line. Again brother’s son’s son being in the father’s line is to be preferred to father’s brother’s son’s son who is in a remoter line namely the line of grandfather. The rule lays down merely that a relation who traces his relationship to the deceased either in the deceased’s own line or in the line of a nearer ancestor is to be preferred to one who traces his relationship in the line of a remoter ancestor in the male line. Rule 2: Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent. This rule lays down that in the case of agnates or cognates, where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent. This means the same thing as that where a person in the same line is nearer to the common ancestor than another relation of the same line, the former is preferred to the latter. Thus a father’s brother’s son being nearer than father’s brother’s grandson is preferred to the latter though both of them are in the same line, namely the line starting from father’s father. So also the brother’s son’s son is to be preferred to the brother’s son’s son’s son for though both the claimants are in the same collateral line beginning from father, brother’s son’s son is nearer or has fewer degrees

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of descent than the brother’s son’s son’s son. In the same way a son’s son’s son’s son is to be preferred to a son’s son’s son’s son’s son for though the claimants are in the same line namely the line of the deceased, the former is a nearer degree than the latter.

Rule 3: Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously. Where the heirs are equal in the descent in the same line they take simultaneously. Father’s father’s father and father’s father’s mother take equally being in the same line; so also son’s son’s son’s daughter and son’s son’s son’s son take equally both being in the line of the deceased and neither being nearer in descent. In the application of these rules, there is no discrimination on the ground of sex. It should however not be forgotten that a relation who is an agnate though in a remote degree of ascent or descent or of both is to be preferred to a cognate who may be in a nearer degree or nearer line or both. Computation of degrees: Another question that arises is that of computation of degrees. This is answered by section 13 which provides as under: 13. Computation of degrees. (1) For the purposes of determining the order of succession among agnates or cognates, relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or 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. This section lays down that for the purpose of determining the order of succession among agnates and cognates, the relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both as the case may be. Degrees of ascent and

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degrees of descent shall be computed inclusive of the intestate. Every generation constitutes a degree either ascending or descending.