Ramu Nambootiri (Counsel: In - House) 02 March 2010

Intestate Succession

The parties are Hindus. Their deceased Father's self acquired property was divided in 1997 between the widow and their eight children. The widow was living with one of her sons in the family home they got in between them in the partition. She diversted her share to this son with a right to live in the ancestral home until her death, incororating into the partition deed. She died in 2004. The son died intestate in 2008 survived by his widow. They have no issues.

As we undedrstand, under the Hindu Succession Act (HSA) read with the Indian Succession Act, the property has to be divided in between the widow and other heirs as per schedules in I & II of the HSA. Under Sch I only the widow lives to inherit. However, under Sch II, 'brother' & sister' has been named as the next inheritors.

Does this mean that the property has to be divided into three equal parts with the the decead's two sisters getting one share to divide equally in between them and his five brothers getting one share to divide in the same way and the third share going to the widow? Thanks.

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12 Replies

Suchitra. S (Advocate) 02 March 2010

I think it is only the widow who succeeds to the property as a first class heir. It is only in the absence of the first class ehirs that the 'brothers and sisters' of the deceased can succeed.

adv. rajeev ( rajoo ) (practicing advocate) 02 March 2010

It is not clear in your question that whether mother had given her share to his son with whom she was living. She is the absolute owner , if she had made any arrangment regarding her share then it becomes the property of the son and so on after the death of the son his widow and his chidlren will inherit the property.

Ramu Nambootiri (Counsel: In - House) 02 March 2010

Thanks Suchitra and Rajeev. Yes, Rajeev, it is mentioned in the letter that she had divested her share to her son as incorporated in the Partition deed. She died and that share is also the son's right but that also has been left over in the intestate position.

Suchitra, in response to your reply, my understanding is that in order to 'take possession simultaneously to the exclusion of all others' in Class II as per s9 of the Act, there should be more than one heir in Class I. Otherwise, the Rules in s.10. May be, I need more feedback on this. Thanks.

G. ARAVINTHAN (Legal Consultant / Solicitor) 02 March 2010

His widow will inherit all the share in the absence of the children

Ramu Nambootiri (Counsel: In - House) 02 March 2010

Thanks Aravinthan. Is there any citable decision I can read on this subject. Thanks.

Ramu Nambootiri (Counsel: In - House) 02 March 2010

One more question for you Aravinthan. Does the same rule apply 'in the absence of the Mother' who still may have sons and daughters surviving her?

Anil Agrawal (Retired) 02 March 2010

How did she giver her share to the son? Will, sale, transfer, gift? You say LETTER? What is this?

Ramu Nambootiri (Counsel: In - House) 03 March 2010

Anil, are you mis-reading something? The LETTER is the thread above. How the Mother gave her right to her son is also explained in the 2nd and 3rd sentecnes in my 'letter' above. Please read in sequence. Thanks.

Anil Agrawal (Retired) 03 March 2010

I beg you to elucidate to whom the letter was given?

Ramu Nambootiri (Counsel: In - House) 03 March 2010

Dear Anil, there was no LETTER written by anyone in this 'intestate succession' issue. I meant to say my 'ENQUIRY' that generated your response. Thanks.