What are the various schools of Hindu Law?

Differentiate between Mitakshara and Dayabhaga

Schools.

Answer : INTRODUCION:- As we know that Hindu Law is two types :

1. Codified Hindu Law

2. Un-codified Hindu Law.

1. The codified Hindu law applies to all Hindu equally whereas the un-codified Hindu Law the
situation is different. The application of Un-codified Hindu Law depends upon the context of different
schools. As per the context of schools, Hindu Law is of two types :-

1. MITAKSHARA SCHOOL

2. DAYABHAGA SCHOOL

The Mitakshara school has further the following sub schools :

a) Banaras or Varanasi sub school.

b) Mithila Sub school.

c) Maharashtra or Mumbai sub school.

d) Dravid or Madras sub school.

e) Punjab sub school.

SCHOOLS OF HINDU LAW

MITAKSHARA SCHOOL DAYABHAGA SCHOOL

Banaras Mithila Maharashtra Dravid Punjab

Case : Collector of Madrai v/s Mottaramlingam 1868: It was said that, “ There is only one remote
source among the various schools of Hindu Law, but due to different beliefs of Digest and its
commentaries several schools and sub schools of Hindu Law have developed.”There are mainly two
causes to differentiate between several schools of Hindu Law :-1 .Different Customs and Usages
prevail in different parts of the country.2. These different areas are governed by different Digest and
Commentaries.

MIKAKSHARA SCHOOL

The name of this school came from the Digest Mitakshara of Vigyaneshwa. The area of its application
is whole India excluding the Assam State. Case : Rohan v/s Laksman – 1976. It was held that the
effect of mitakshara school is so strong that it also applies to even undescribed subjects in Bengal and
Assam.

Sub-Schools of Mitakshara
a) Banaras Sub-School :- The area of Banaras sub school is complete North India, rural area of
Punjab, south Bihar, Orissa and few parts of Madhya Pradesh. The important books concerning to this
are Mitakshara of Vigyaneshwa, Veer Mitrodaa and Niranaya Sandhu of Mitr Mishra.

b) Mithila sub school : Area= Tirhut and few districts of North Bihar. Books are Vivadh Chintamani
and Vivadh Ratnakar.

c) Maharashtra sub school:- It is also called as Mayuk sub school. Area of this sub school is
Maharashtra, Saurashtra, Madhya Pradesh and few parts of Andhra Pradesh. Books are Vyavhar
Mayuk, Veer Mitradaya and Nirnaya Sandhu.

d) Dravid sub school :- The whole south of India, i.e. Madras, Kerala, Mysore. Books are Smriti
Chandrika, Parashar Madhviya, saraswati Vilas, Vyavhar Niranaya.

e) Punjab sub school :- Area of the school is Punjab, Rajasthan, Jammu-Kashmir. This sub school
emphasized on Customs and Usages. Books are Digest on Yagyavalkya Smriti written by Aprak,
Mitakshara & Veer Mitrodaya.

DAYALBHAGA SCHOOL

Its name came from the Digest Dayabhaga of Jimuthvahan. The area of its application is Bengal and
Assam. The period of writing of Dayabhaga is considered to be 1090-1130 A.D. Dayabhaga is
mainly on essay on partition and succession.

DIFFERENCE BETWEEN MITAKSHARA DAYABHAGA SCHOOLS

The above two schools has the principally differences on two subjects:-

1. INHERITANCE

2. JOINT FAMIY & COPARCENARY.

1. MITAKSHARA SCHOOL: i) :- I) Inheritance in Mitakashaara is based on relation by blood. 2.

A relative by blood receives succession in property which is the basic principle of Hindu succession
law. 3. Women have been excluded in succession. 4. Agnates supersedes the cognates.5.The area of
its application is whole India except Assam State. The coparcenary evolves with the birth of a son.
Property over which all coparceners have similar ownership. 5. No coparcenary can say before
partition that he is the owner of that particular property. Coparcenary has been recognised by this
school.

2. DAYABHAGA SCHOOL :- i) 1. The succession of property in Dayabhaga school based on

spiritual principles. 2. In this school successor of property is such person who earns maximum peace
and religious profit for the soul of deceased by performing „Pindadaan‟ & religious rituals etc. 3. This
law is liberal because few women and cognates can also receive property in succession, but after
passing of Hindu Succession Act this has been ceased. 4 The coparcenary evolves after the death of
the father. In Dayabhaga school the son has no right during the lifetime of the father.5. On the death
of a Hindu Person his property shall devolve among his heirs on the basis of succession.6.
Coparcenary has been recognised by this school.

1 Ancestral Property
All property inherited by a Hindu male from his father, father's father, or father's father's father, is
ancestral as regards his male male issue, even enough it was inherited by him after his death of a life-
 Karta
In the entire Hindu Joint Family „Karta‟ or „Manager‟ occupies a very important position. There is no
office or institution in any other system of the world can be compared with it. He is a person with
limited power but he possess such vast power with in ambit of joint family which nobody enjoys.

Who is a Karta:-
Karta means manager of joint family and joint family properties. He is the person who takes care of
day to day expenses of the family looks after the family and protects the joint family properties.

Who can be a Karta:-

It is a presumption that ordinarily senior most male member is the Karta and Karta is always a
member in the family no outsider or stranger can become a Karta.
The senior most male member so long as he is alive may be, aged, infirm or ailing continues as Karta.
By his death Kartaship will pass on to next senior most male member.

In the presence of senior most male member a junior cannot act as Karta but if all coparcener agree, a
junior also can become a Karta.

Karta owes his position by consent or agreement of all coparceners.

Female Member:-
Generally female member cannot become Karta but in exceptional circumstances female also can act
as Karta.

Nagpur High Court held the view that mother even though not a coparcener, in the absence of adult
male member can act as Karta.

In Commissioner of Income Tax Vs. Seth Govind Ram, the Supreme Court held mother or any female
member could not be Karta of joint family and therefore cannot alienate joint family property.

Position of Karta:-
Karta is sui generis (of its own kind) the relationship between him and members is not like principal
or agent or like partners in a partnership firm.

He is the head of the family and acts on behalf of other members.

He stands fiduciary relationship with other members but he is not a trustee, nobody can question what
he spent unless charges of misappropriation.

When any coparcener charges of improper alienations made by Karta, burden of proof lies on him to
prove such are malafide act of Karta.

Powers of Karta:-
With in joint family Karta has vast powers with limitations.
1) Power of management:- He is the head of the family, his management powers are absolute. He
may manage the family affairs and family property and business the way he likes for the benefit of
estate, no one can question his management.
2) Right to Income:- It is general rule that all members who works or do business out of joint family
property must hand over income to Karta. It is for Karta to allot funds to the members and look after
needs and requirements, so long as family remains joint, no member can ask for any specified share in
the income.

3) Right to representation:- He represent the family, represents the family in all matters, legal, social
and religious. He can enter into any transaction on behalf of the family, his acts are binding on the
entire joint family.

4) Power to compromise:- He has power to compromise all disputes relating to family property or
their management. He can compromise pending suits, family debts, and other transactions. However if
his act is not bonafide can be challenged in a partition.

5) Power to refer a dispute to arbitration:- Karta has power to refer any dispute to arbitration and
Arbitrator‟s award is binding on all the members.

6) Power of acknowledgement and to contract debts:- Karta has power to acknowledge on behalf
of the family any debt due to the family, also has power to pay debt or to make pack payment of debt.
He has power to contract debts for the family such debts incurred in the ordinary course of business
are binding on entire joint family.

Even Karta when takes loan or execute promissory note for family purpose or for family business
joint family is liable to pay such loan.

7) Power to enter into contract:- Karta has power to enter into contract and such contract is
enforceable against the family.

8) Power of alienation:- Nobody in the family has power to alienate joint family property. However
Karta has power of alienation under 3 circumstances.
a) Legal necessity
b) Benefit of estate.
c) Indispensable duties.

Kartas Liabilities:-
Karta has vast powers same time his position is fiduciary and has lot of responsibilities and liabilities.
1) Liable to maintain:- Karta is responsible to maintain all the members of joint family. If he
improperly excludes any member from maintenance, he can be sued for maintenance and also arrears
of maintenance.

2) Liability to render accounts:- As long as family remains joint, Karta is not supposed to keep
accounts, but when partition takes place at that time he is liable to account for family property. If any
of the coparcener is not satisfied with his account can institute a suit against Karta to discover the
truth and to know any misappropriation is made by Karta.

3) Liability to recover debts due to the family:- Kartas should realize all debts due to the family with
in reasonable time but should not allow them to bar by limitation.
tenant. A father cannot change the character of joint family property into absolute property of his son
by merely marking a will and bequeathing it or part of it to the son as if it was the self-acquired
property of the father. In the hands of the son the property will be ancestral property and the natural or
adopted son of that son will take interest in it and be entitled to it by survivorship as joint family
property. Where a number of sons inherit their father's self-acquired property, they hold it as joint
family property if at the time of his death they are living as members of a joint family.
In Atar Singh v. Thakar Singh it was stated that judgment that unless the lands came “by descent from
a lineal male ancestor in the male line, they are not deemed ancestral in Hindu Law.”
Property acquired by a father by adverse possession would not be ancestral property in his hands and
his sons would not take interest in it by birth. In a case the Privy Council held that a maternal uncle is
not an ancestor, and it has accordingly been held that property inherited from a maternal uncle is not
ancestral property.
In Chelikani Venkayyamma v. Venkatar Amanayyamma the property which had descended from the
maternal grand-father to his two grandsons. On the death of one of the grandson the widow of the
deceased claimed to recover a moiety of the estate from the surviving grandson(Brother). The
question was whether the property of the maternal grandfather descended, on the death of his
daughter, to her two sons jointly with benefit of survivorship. Their Lordships decided that the estate
was governed by the rule of survivorship, and the claim of the widow was, therefore negatived. This
decision of the court was criticsed.
In Muhammad Husain Khan v. Babu Kishva Nandan Sahai one G inherited certain property from his
maternal grandfather J. Under a will made by G the property which G inherited from his maternal
grandfather was to go to his son B and on the death the property was to vest in B's widow, Giri Bala.
During the life time of B, in an execution of a money decree against him the said property was sold. B
then brought a suit, claiming possession of the property. The validity of the will executed by G is
challenged on the ground that the testator had no authority to dispose of the property, as it belonged to
a Hindu coparcenary consisting of himself and his son. In their Lordships' opinion the estate which
was inherited by G, from his maternal grandfather cannot be held to be ancestral property in which his
son had an interest jointly with him. G consequently had full power of disposal over that estate, and
the devise made by him in favour of his daughter-in-law could not be challenged by his son or any
other person. ON the death of her husband, the devise in her favour came into operation and she
became the absolute owner of the village property, as of the remaining estate ; and the sale of that
village in execution proceedings against her husband could not adversely affect her title.
Property inherited by a person from collaterals, such as a brother, uncle, etc, or property inherited by
him from a female is his separate property. The share which a coparcener obtains on partition of
ancestral property is ancestral property as regards his male issue. If the coparcener dies without
leaving male issue, it passes to his heirs by succession. Accumulations of income of ancestral
property, property purchased or acquired out of income proceeds of sale of ancestral property and
property purchases out of such proceeds are ancestral property.
In C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar case, Issue was whether property
obtained by a gift or will from paternal ancestor are to be regarded as ancestral or self-acquired
properties. In this case there were allegation that there were joint property of a family consisting of
himself, his father and his brothers and that he was entitled in low to one-third share in the same.
Plaintiff and his brother, are both sons are from first wife of their father, who predeceased her
husband. The father assert an exclusive title to the joint family property denying any right of his sons.
Father claimed that some of the property is his self acquired property and other properties were self-
acquired property of his father and he got them under a will executed by his father. In connection to
this case the court referred the case of Ram Balwant v. Rani Kishori. In this case the Lordship held
that chap.1,Sec.1 verse 47of Mitakshara contained only moral or religious precepts while those in S.5,
verses 9 and 10 embodied rules of positive law. It was held that the father of a joint family governed
by Mitakshara law has full and uncontrolled powers of disposition over his self acquired immovable
property and his male issue could not interfere with these rights in any way. Further in Muddan Gopal
v. Ram Buskh it was held that a Mitakashara father is not only competent to sell his self-acquired
immovable property to a stranger without the concurrence of his sons. While referring another case
Sital v. Madho and Bawa Misser v. Rajah Bishen where it was held that a Mitakshara father can make
a gift of his self acquired property to one of his sons to the detriment of another and he can make even
an unequal distribution amongst his heirs. Going through above cases court concluded that a property
gifted by a father to his son could not become ancestral property in the hands of the donee simply by
reason of the fact that the donee got it from his father or ancestor. On reading the will as a whole the
court held that it becomes clear that the testator intended the legatees to take the properties in absolute
right as their own self-acquisition without being fettered in any way by the rights of their sons and
grandsons.
Son takes at his birth in the ancestral property is wholly independent of his father. He does not claim
through the father, and, therefore, a transfer is allowed by law, cannot affect the interest of the son in
the property. However, the father has a special power of disposal of ancestral property for certain
purposes. The father has the power of making within reasonable limits gifts of ancestral movable
property without the consent of his sons. A Hindu father of other managing member has power to
make a gift within reasonable limits of ancestral immovable property for pious purposes. A member
of a joint family cannot dispose of by will a portion of the property even for charitable purposes and
even if the portion of the property bears a small proportion to the entire estate.
2 SELF ACQUIRED/Separate Property
Property acquired in any of the following ways is the separate property of the acquirer; it is called 'self
acquired' property. Following are the some examples of Separate Property :-
1 Obstructed Heritage
2 A gift of a small portion of ancestral movable made through affection by a
father to his male issue is his separate property.
3 Property granted by Government to a member of a joint family.
4 Ancestral property lost to the family, and recovered by member without the
assistance of joint family property.
5 Income of separate property
6 Property obtained as his share on partition by a coparcener who has no male
issue
7 Property held by sole surviving Coparcenar when there is no widow in
existence who has power to adopt.
8 Separate earnings of a member of a joint family.
9 Gains of learning.
In Dipo v. Wassan Singh, plaintiff sued to recover possession of the properties which belonged to her
brother, who died. She claimed to be the nearest heir. The defendants the sons of paternal uncle
contest that they were preferential heirs according to custom, as the whole of the land was ancestral in
the hands of the deceased. The court said that properties in the hands of deceased are properties which
originally belonged to his ancestors. But deceased was the last male holder of the property and he had
no male issue. There was no surviving member of a joint family, be it a descendant or otherwise, who
could take the property by survivorship. Property inherited from paternal ancestors is, of course,
ancestral property' as regards the male issue of the propositus, but, it is his absolute property and not
ancestral property as regards other relations. It was held that the defendants were collaterals of
deceased and as regards them the property was not 'ancestral property' and hence the plaintiff was the
preferential heir.
4) Liability to spend reasonably:- As Karta of joint family has control over the income and
expenditure of the family, he is custodian of surplus income. However he should spend family funds
reasonably and for the purpose of the family.

5) Liability not to alienate coparcenary property:- Unless it is for benefit of family, estate or for
necessity Karta cannot alienate joint family property without the consent of all the coparceners.

6) Liable not to start new business:- Unless adult coparceners of the family expressly or impliedly
consents, Karta cannot impo

Right of female:-
As already mentioned no female has right to partition but certain females are entitled for shares if
partition is effected.

1) Father‟s wife, mother and grandmother is entitled to share as per Hindu women‟s Right to Property
Act 1987 when Mitakshara Coparcener dies leaving behind widow, she took his share at the time of
partition she is entitled to take the extent of her husband share.

2) Hindu women‟s Right to Property Act 1987 when Mitakshara Coparcener dies leaving behind
widow, she took his share at the time of partition she is entitled to take the extent of her husband
share. Hindu women‟s Right to Property Act 1987 when Mitakshara Coparcener dies leaving behind
widow, she took his share at the time of partition she is entitled to take the extent of her husband
share.

Under Hindu Succession Act, 1956 U/S 6 widow, daughter, mother, predeceased son‟s daughter and
his widow, predeceased son‟s predeceased son‟s widow, daughter‟s daughter are entitled to their
respective shares as per the rules laid down.

An aliened of coparcener‟s undivided interest files a suit for partition is entitled to a share to the
extent of that coparcener.

The general rule that every coparcener has a right to partition subject to two exceptions:
1. Unqualified coparcener has no right to partition
2. Sons cannot claim partition against their father if the latter is joint with his own father.

Persons who have right to partition

1) Father:- Father has not merely a right to partition between himself and his sons can also
effect partition among his sons. Every father can make partition of his self acquired property
also (means distribution of his property as per his wishes).
While doing this consent of sons is immaterial. Father can impose partition partial or total, even
between minor sons and himself. But this act of him must be bonafide. Otherwise minor son after
attaining majority can file for reopen of partition.

2) Sons, Son’s Son, Son’s Son’s Son:- Every S, SS, SSS are entitled to partition but under
Bombay School when father is joint with his father or brothers consent of father is essential.
If joint family consist of father and sons then son can ask for partition.

3) Son born after partition:- Smritikaras has different opinions on this.

Vishnu and Yajnavalkya – Partition should be reopened and share has to allot to after born son.

Manu, Gautama, Narada – after born son could get share of his father alone.

Mitakshara school formulated a general procedure by applying both principles but in different
situations.

i) Son conceived at the time of partition but born after partition (unborn son)
When person is in mother‟s womb under Hindu Law for many purposes equivalent to born child.
When mother is pregnant partition has to postponed until delivery. But if coparcener does not want to
postpone then has to reserve a share to unborn son and go for partition otherwise child (son) can file a
suit for reopen of partition after his birth.

ii) Son begotten and born after partition (after born son)
If any son born after partition and he was not even in mother‟s womb then the following rules apply.
a) When father has taken his share in partition then he becomes coparcener only in father‟s share.
b) When father has not taken his share then after born son has a right to get partition reopened and get
the estate redistributed.

iii) If father renounces his share

When father renounces his share, son born after renouncement is not entitled to get any right in the
joint family. He will be remained as coparcener in father family.

iv) Adopted Son

Position of adopted son also differs with situation.
a) When there is a subsequently born natural son.
b) When there is no subsequently born natural son.

When natural son born after adoption then adopted son interest differs from school.

Right of Adopted son

1) Bombay and Madras School – 1/5 of estate
2) Benaras School - ¼ of estate
3) Bengal School - 1/3 of estate

But presently by virtue of Hindu Adoption & Maintenance Act 1956, Adopted son is entitled to equal
share with natural son.
v) Son of void & voidable marriage

Since son of void & voidable marriage is not coparcener, he cannot sue for partition.

vi) Illegitimate son

Any category of illegitimate son is not entitled for partition because he is not a coparcener.

vii) Minor and lunatic coparcener

No difference between major and minor son, lunatic or physically deformed son all are entitled for
partition and if proper partition is not made by not giving equal shares to them. Coparcener can
challenge and reopen to partition.
viii) Absent Coparcener
Any coparcener who is absent at the time of partition, a share to be allotted to him until he specifically
renounces his interest. If share is not allotted he can also challenge and get the partition reopened.

Right of female:-
As already mentioned no female has right to partition but certain females are entitled for shares if
partition is effected.

1) Father‟s wife, mother and grandmother is entitled to share as per Hindu women‟s Right to Property
Act 1987 when Mitakshara Coparcener dies leaving behind widow, she took his share at the time of
partition she is entitled to take the extent of her husband share.

2) Hindu women‟s Right to Property Act 1987 when Mitakshara Coparcener dies leaving behind
widow, she took his share at the time of partition she is entitled to take the extent of her husband
share. Hindu women‟s Right to Property Act 1987 when Mitakshara Coparcener dies leaving behind
widow, she took his share at the time of partition she is entitled to take the extent of her husband
share.

Under Hindu Succession Act, 1956 U/S 6 widow, daughter, mother, predeceased son‟s daughter and
his widow, predeceased son‟s predeceased son‟s widow, daughter‟s daughter are entitled to their
respective shares as per the rules laid down.

An alienee of coparcener‟s undivided interest files a suit for partition is entitled to a share to the
extent of that coparcener.

The general rule that every coparcener has a right to partition subject to two exceptions:
1] unqualified coparcener has no right to partition
2] sons cannot claim partition against their father if the latter is joint with with his own father.

“Succession to the property of a Hindu Male”

The Hindu Succession Act, 1956, is a law that was passed by the „Parliament of India‟. The preamble
of the Act signifies that an Act to amend and codify the law relating to intestate succession among
Hindus. The Act lays down a uniform and comprehensive system of succession whereas attempt has
been made to ensure equality inheritance rights between sons and daughters. It applies to all Hindus
including Buddhists Jains and Sikhs. The Hindu Succession Act, 1956 preserves the dual mode of
devolution of property under the Mitakshara School. The joint family still devolves by Survivorship
with this important exception that if a Mitakshara Coparcener dies leaving behind mother, widow,
daughter, daughter‟s daughter, son‟s daughter, son‟s son‟s daughter, son‟s widow, son‟s son‟s widow,
or daughter‟s son his interest in the joint family property will devolve by succession.

Succession to the property of a Hindu Male

The Hindu Succession Act, 1956 deals with the inheritance to
a) The separate properties of a Mitakshara male,
b) The separate and coparceners properties of a Dayabhaga male, and
c) The undivided interest in the joint family property of a Mitakshara Coparcener.
The Act does not apply to the property of a Hindu who is married under the Special Marriage Act to a
non -Hindu.

Heirs of a Hindu Male

The heirs of Hindu male fall under the following categories:-

1) Class I heirs,
2) Class II heirs,
3) Agnates,
4) Cognates, and
5) Government.

Class I heirs:-

The property of a Hindu Male dying intestate would be given first to heirs within Class I. They are:
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 of a predeceased son,
ix. Daughter of a predeceased son of a predeceased son,
x. Son of a predeceased son of a predeceased son,
xi. Daughter of a predeceased daughter, and
xii. Son of a predeceased daughter.

Some new heirs are added by Hindu Succession (Amendment) Act, 2005. They are:

i. Son of a predeceased daughter of a predeceased daughter,

ii. Daughter of a predeceased daughter of a predeceased daughter,
iii. Daughter of a predeceased son of a predeceased daughter, and
iv. Daughter of a predeceased daughter of a predeceased son.

Shares of Class I heirs :

Section 10, Hindu Succession Act deals with the distribution of the property of the propositus, among
class I heirs. The rules are:

A.] Sons, daughters and the mother of the propositus each take one share.
For example:-
If „P‟ dies leaving behind his Mother „M‟, two sons S1 and S2 and two
Daughters D1 and D2, each of the above heirs will take one share, i.e., 1/5th
-„M‟ will take 1/5th ;
- D1 and D2 each will also take 1/5th &
- S1 and S2 each will take one fifth.
Succession to a Mitakshara Coparcener’s Interest
The Section 6 of the Act has been extensively amended by the Hindu Succession (Amendment) Act,
2005; while recognizing the rule of devolution by Survivorship among the members of the coparcener
makes an exception to the rule in the proviso.
According to proviso, if the deceased has left a surviving female relative specified in class I or a male
relative specified in that class who claim through such female relation, the interest of a deceased in
Mitakshara Coparceners property shall devolve by testamentary of instate succession under the Act
and not as Survivorship.

Certain exceptions:-
If , and the heirs are both male and female, the female heir is not allowed to request partition until the
male heir chooses to divide their respective shares. If this female heir is a daughter, she has the right
to reside in the home if she is unmarried, divorced or widowed.
After the Hindu Succession (Amendment) Act, 2005; Section 6, the difference between the female
and male inheritor has been abolished . Now even female inheritor [daughter] can also claim partition
of the ancestral property.
Further any person who commits murder is disqualified from receiving any form of inheritance from
the victim.

If a relative converts from Hinduism, he or she is still eligible for inheritance.

Amendments
The Hindu Succession (Amendment) Act, 2005, amended Section 6 of the Hindu Succession Act,
1956, allowing daughters of the deceased equal rights with sons. In the case of coparcenary property,
or a case in which two people inherit property equally between them, the daughter and son are subject
to the same liabilities and disabilities. The amendment essentially furthers equal rights between males
and females in the legal system.
The Hindu Succession Act,1956 applies if the intestate is Hindu,Buddhist,Jain or Sikh but doesn‟t
automatically include scheduled tribes.It also includes legitimate or illegitimate children,if one of
his/her parents is Hindu,Buddhist,Jain or Sikh.It also includes converts and reconverts to these
religions.

When a Hindu male dies intestate i.e.without a will, and has not married a non-Hindu,the right of
succession first devolves upon the Class 1 heirs, if any,shown in the diagram to the left. If even one
such heir exists, all other relatives who do not fall within this category are excluded automatically.If
there are several Class 1 heirs, then there are certain rules as to how they will share the properties
amongst themselves.

The widow (or widows), mother and each of the children (son or daughter, the law makes no
distinction) take equal shares. Where one or more of such sons or daughters is no more, then, the
Class 1 heirs in that branch will all jointly stand in the place left behind by such deceased son or
daughter. To understand this rule,imagine a tree. It has two branches. Each branch has two twigs.
Now, assume that the main trunk of the tree which we have taken as an example, is the deceased
Hindu male whose property we are now attempting to divide. The Hindu male has two children who
are represented by the two branches. If both are alive, both get equal shares, that is to say, half and
half. If, however, one child is no more, leaving behind two children of his own (the two twigs in our
B.] Widow takes1 share. If there are more than one widow, all of them together take one
Share and among themselves they divide it equally.
For example:-
„P‟ dies leaving behind a widow, „W‟ and three daughters „D‟, „D1‟, and
„D2‟. Here each will take one share, i.e. 1/4th to each.
-„W‟ will take 1/4th,
-„D‟, „D1‟ &„D2‟ each will take 1/4th .
C.] Among the heirs of the branches of a predeceased son, son of a predeceased son of a
Predeceased son and predeceased daughter, so here the doctrine of representation applies
i.e. heirs in each branch would take the same share which their parent would have taken.

So, we see above three rules in the following example:

If „P‟ dies leaving behind son „S‟, widow of a predeceased son „S1‟, „SW‟,
Predeceased daughter‟s son and daughter „DS‟ and „DD‟, predeceased son‟s
Predeceased son‟s widow „SSW‟, his daughter „SSD‟ and his son „SSS‟.
Distribution is first to be made at a place where branches come into existence.
There are four branches, each will take 1/4th share i.e.
- „S‟ will take 1/4th .In the branch of „S1‟ there is only one heir „SW‟, she
representing „S1‟ will take 1/4th .
- In the branch of predeceased daughter, there are two heirs, they representing her
will take 1/4th and between themselves divide it equally, with result that „DS‟
will take 1/8th and „DD‟ will take 1/8th .
- In the branch of predeceased grandson, there are three heirs, representing him
they will take 1/4th & among themselves share it equally, with the result that
„SSW‟, „SSD‟&„SSS‟ each will take 1/12th.

Class II heirs and their shares:

If there are no heirs in Class I, the property will given to the heirs within Class II. They are divided
into nine categories. The rule is that an heir in an earlier category excludes heirs in later category.
Further all heirs in one category take simultaneously per capita share. They are as follows:

1] Category I -
a) Father.

2] Category II -
a) Son‟s daughter‟s son.
b) Son‟s daughter‟s daughter.
c) Brother.
d) Sister.

3] Category III -
a) Daughter‟s son‟s son.
b) Daughter‟s son‟s daughter.
c) Daughter‟s daughter‟s son.
d) Daughter‟s daughter‟s daughter.

4] Category IV -
a) Brother‟s son.
b) Brother‟s daughter.
c) Sister‟s son.
d) Sister‟s daughter.

5] Category V -
a) Father‟s father.
b) Father‟s mother.

6] Category VI -
a) Father‟s widow. [Step mother].
b) Brother‟s widow.

7] Category VII -
a) Father‟s brother.
b) Father‟s sister.

8] Category VIII -
a) Mother‟s father.
b) Mother‟s mother.

9] Category IX –
a) Mother‟s brother.
b) Mother‟s sister.

The rule of share in Class-II heirs is that each will take per capita including widow.

Agnates and Cognates:

Next heir of Hindu male is „Agnates and Cognates‟. In it first preference is given to „Agnates‟ & then
„Cognates‟. The rules for determining who are agnates & cognates are the same; so are the rules
relating to distribution of property among them.

Agnates mean when a person traces his relationship with another through males, he or she is an
„Agnates‟. For instance brother, brother‟s son, son‟s son, son‟s son father, father‟s father, father‟s
mother, father‟s father‟s father & mother, son‟s daughter, son‟s son‟s daughter………. etc are
agnates.

On other hand cognates means whenever in the relationship of a person with another, a female (or
more than one female) interverence anywhere in the line, one cognate to another. For instance sister‟s
sons & daughters; daughter‟s sons & daughters; mother‟s mother & father; father‟s mother‟s father &
mother; mother‟s father‟s son & daughter………..etc are all cognates.

Government:
If a Hindu male leaves behind neither class I, nor class II, nor any agnates, nor any cognates upon his
death, then, his entire property lapses to the government. This is called as “Escheat”. When
government takes his property as heir, it takes with subject to all the obligations and liabilities of
propositus.
example), then, each such grandchild will not share equally with the surviving child of the deceased
Hindu male, but will jointly take whatever, their father or mother would have been entitled to, had
their father or mother been alive.So in our example, the two twigs would get only the same share as
one branch, and would not share in equal thirds with the surviving branch.

The law makes no distinction between natural and adopted children.

If the widow of a pre-deceased son or the widow of a pre-deceased son of a pre-deceased son has
remarried, she is not entitled to receive the inheritance.

In case no Class-I heirs are available,Class-II heirs ,in the diagram below are considered.Among the
heirs specified in Class II, those in the preceding entry take the property simultaneously and in
exclusion to those in the subsequent entries.

In case of no Class-I or Class-II heirs being available,the property then goes to

first,the deceased‟sagnates or relatives through male lineage and if still no heir is available,
his cognates, or any relative through the lineage of males or females.Two people are called Agnates
of each other if they are related (by blood or by adoption) wholly through males. Agnates could be
males or females. Thus, a father‟s brother‟s daughter is an Agnate but a father‟s sister‟s son is not an
Agnate because the relation is not entirely through males. On the other hand, two people are called
Cognates of each other if they are related (by blood or by adoption) but not wholly through males.
Cognates could be males or females. A mother‟s brother‟s daughter or a father‟s sister‟s son is a
Cognate because the relationship is not wholly through males. The relationship of Agnates and
Cognates does not extend to those relationships which arise because of marriage. Among two or more
Agnates/ Cognates, the order of succession is that the heir who has fewer or no degrees of ascent is
preferred. If the degrees are same then those who have fewer or no degrees of descent are preferred.

If someone leaves behind neither Class 1, nor Class 2 heirs, nor has any agnates, nor any cognates
his entire property lapses to the Government. This is called “escheat”.

The property of a Hindu female dying intestate i.e.without a will, devolves in the following
order:

(a) Firstly, upon her sons and daughters (including the children of any pre-deceased children) and
husband;

(b) Secondly, upon the heirs of her husband;

(c) Thirdly, upon her parents

(d) Fourthly, upon the heirs of her father

(e) Fifthly, upon the heirs of her mother

The order of succession is in the order given above. Thus, the heirs in the preceding entry take the
property simultaneously and in exclusion to all others. Thus, the children and husband of a Hindu
female take the property in preference to all other heirs specified. The order of devolution as regards
her husband‟s heirs would be as if it were her husband‟s property and he had died intestate. The same
principle would apply as regards devolution on her father‟s heirs.

5.3 S.15(2) carves out an exception to the order of succession specified above. In case of an Hindu
female dying intestate and without any issue or any children or any predeceased children, any
property inherited by her from her parents shall not devolve upon her husband or his heirs but revert
to her natal family.Similarly, in case a Hindu female dies intestate and without any issue or any
children or any predeceased children, then any property inherited by her from her husband or her
father-in-law devolves upon the heirs of her husband. Thus, property inherited from her husband
would not devolve upon her father or his heirs.

Both the above provisions of s.15(2) would only apply if the female dies without leaving behind any
children or children of any predeceased children. If she has left behind any children, then they would
take the property in preference to all other heirs. Further, the provisions only apply to “inherited”
property and not property acquired by way of a will or under a gift.