There are talks of an Inheritance Tax @ 55% being imposed on all the persons who pass-away and his property passes to his heirs by Will or Intestate. This is a worrisome situation for all of us as the hard earned income and wealth would be shared by those who are parasites and live only on the taxes and welfare scheme of the Govt.
Let us take a calculated look at this *Inheritance Tax @ 55% Scheme
When a Hindu dies, his property passes to his heirs either by without a will or Intestate as per the provisions of the Hindu Succession Act 1956 as amended by the Act of 2005. The Act as it originally stood did not make provision for –intestate inheritance- to his daughters as they were deprived from getting any share of the coparcenary property of her father. However, the Act was amended in 2005 and specific provision has been made aimed at correcting past gender discrimination after December 20, 2004, to prevent circumventing daughters’ rights.
The validity of this amendment was tested by the Hon’ble Supreme Court in the case of Vineeta Sharma Vs Rakesh Sharma & Ors. Civil Appeal No. Diary No.32601 of 2018 dated August 11, 2020 and delivered a landmark judgement on the Hindu Succession Act, 1956 as amended in 2005 with respect to the rights of the daughters in the coparcenary property.
Part of the Order of the Supreme Court
“129. Resultantly, we answer the reference as under:
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class ¬I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.
In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision”
The Act lays down some general rules of inheritance
Section 8 of the Hindu Succession Act lays out the general rules for how the property of a male Hindu who dies intestate (without a will) is distributed among his relatives. The order of succession is clearly outlined in four levels, prioritizing closer family members before moving on to more distant relatives. Here’s a detailed explanation of each category.
(a) Class I Heirs
These heirs have the first right to the deceased’s property. Class I heirs typically include the widow, sons, daughters, mother, and other close relatives such as the widow and children of a predeceased son, the widow and children of a predeceased daughter, etc.
Example: If Mr. A dies intestate, leaving behind a wife (W), a son (S), and a daughter (D), his property will be divided equally among W, S, and D.
A complete list of the Class-I heirs is as under:
| 1 | Son | पुत्र | |
| 2 | Daughter | पुत्री | |
| 3 | Wife | पत्नी | |
| 4 | Mother | माता | |
| 5 | Son of a predeceased son | Grandson via a deceased son) | पोता(S) |
| 6 | Daughter of a predeceased son | Granddaughter via a deceased son | पोती(S) |
| 7 | Son of a predeceased daughter | (Grandson via a deceased daughter) | नवासा |
| 8 | Daughter of a predeceased daughter | (Granddaughter via a deceased daughter) | नातिन |
| 9 | Widow of a predeceased son | Daughter in law, if her husband predeceased his father) | पुत्र–वधू |
| 10 | Son of a predeceased son of a predeceased son | Great-grandson via a deceased grandson | परपोता (S) |
| 11 | Daughter of a predeceased son of a predeceased son | Great-granddaughter via a deceased grandson | परपोती (S) |
| 12 | Widow of a predeceased son of a predeceased son | Great-grand-daughter-in-law | परपोती बहू |
| 13 | Son of a predeceased daughter of a predeceased daughter | Great-grandson | नातिन का बेटा |
| 14 | Daughter of a predeceased daughter of a predeceased daughter | Great-Grand daughter | नातिन की बेटी |
| 15 | Daughter of a predeceased son of a predeceased daughter | Great-Grand daughter | नवासा की बेटी |
| 16 | Daughter of a predeceased daughter of a predeceased son | Great-Grand daughter | पोत्री की बेटी |
Relationship in Hindi followed by(S) represent from Son’s Side and by (D) represents from daughter’s side.
(b) Class II Heirs
If there are no Class I heirs, the property passes to Class II heirs, which include a broader group of relatives such as father, siblings, grandchildren from predeceased children (if they themselves are not Class I heirs). Example: If Mr. B dies intestate and has no living Class I heirs (no wife, children, or mother), but he has a living father (F) and a sister (Si), his property would then pass to 1- Father only because (Si) is in a group 2 than Father in Group in group-1.
| 1 | Father |
| 2 | 1. Son’s daughter’s son |
| 2. Son’s daughter’s daughter | |
| 3. Brother | |
| 4. Sister. | |
| 3 | 1. Daughter’s son’s son, |
| 2. Daughter’s son’s daughter | |
| 3. Daughter’s daughter’s son, | |
| 4. Daughter’s daughter’s daughter | |
| 4 | 1. Brother’s son |
| 2. Sister’s son | |
| 3. Brother’s daughter, | |
| 4. Sister’s daughter. | |
| 5 | 1. Father’s father |
| 2. Father’s mother. | |
| 6 | 1. Father’s widow |
| 2. Brother’s widow | |
| 7 | 1. Father’s brother |
| 2. Father’s sister. | |
| 8 | 1. Mother’s father |
| 2. Mother’s mother. | |
| 9 | 1. Mother’s brother; |
| 2. Mother’s sister. |
(c) Agnates
If there are no heirs in either Class I or Class II, the property is inherited by the agnates of the deceased. Agnates are male relatives on the deceased’s father’s side who are related through males. This could include male relatives such as a cousin (son of the deceased’s paternal uncle). This means that every link in the chain of relationship must be through male descent. Agnates are considered for inheritance if there are no Class I or Class II heirs.
Agnates include not only the direct male descendants (such as sons or grandsons) of the deceased but also other male relatives who are connected through an unbroken male line, such as male cousins, nephews, uncles, etc., whose connection is only through men.
Agnates inherit the property of a deceased Hindu male in the following order:
(i) After all Class I and Class II heirs have been exhausted.
(ii) Before cognates (relatives who may be connected through male or female lines).
Example:
Mr. Y, a Hindu male, dies intestate (without a will). He has no wife, children, mother, father, siblings, or Class I and Class II heirs.
Potential Agnates:
A paternal cousin (PC1), who is the son of Mr. Y’s father’s brother.
A paternal nephew (PN1), who is the son of Mr. Y’s deceased brother.
Succession Process:
Since there are no Class I or Class II heirs, the property would pass to the agnates. PC1 and PN1, being agnates, would inherit Mr. Y’s property because their connection to Mr. Y is through a continuous male line:
| Mr. Y → Mr. Y’s father → Mr. Y’s father’s brother → PC1
Mr. Y → Mr. Y’s father → Mr. Y (brother) → PN1 |
The division between PC1 and PN1 would generally be equal, though the exact shares can depend on the number of agnates and their proximity in terms of generational distance from the deceased.
Example:
Mr. Z, another Hindu male, dies intestate. He leaves behind no immediate family and no Class I or Class II heirs. He does have a surviving uncle (U1) on his paternal side and a male first cousin (C1), who is the grandson of U1.
Potential Agnates:
Uncle U1 (father’s brother)
Cousin C1 (son of Mr. Z’s cousin, who is U1’s son)
Succession Process:
Here, both U1 and C1 are agnates, as they are related to Mr. Z strictly through a male lineage:
| Mr. Z → Mr. Z’s father → U1
Mr. Z → Mr. Z’s father → Mr. Z’s cousin (U1’s son) → C1 |
U1 and C1 would be entitled to share Mr. Z’s estate, with U1 possibly receiving a larger share due to being closer in generational terms to the deceased, although specific legal details might vary based on other factors such as the number of agnates and regional interpretations of the Hindu Succession Act.
(d) Cognates
If there are no agnates, the last recourse is to the cognates, who are any blood relatives of the deceased, whether through male or female lineage, not covered under agnates. Cognates include relatives such as a cousin from the deceased’s mother’s side or even more distantly related family members.
Example: If Mr. D dies intestate and there are no Class I or II heirs, and no agnates, but he has a maternal cousin (MC), the property would then pass to MC.
Cognates can be more distantly related family members who share a common ancestor with the deceased, but the lineage includes both males and females. This contrasts with agnates, who are related to the deceased exclusively through a male lineage. Cognates inherit the property of a deceased male Hindu in the following order:
After all Class I and Class II heirs have been exhausted.
After there are no agnates to claim the deceased’s estate.
Example
Mr. X, a Hindu male, dies intestate (without leaving a will). He leaves behind no wife, children, mother, father, or siblings. Additionally, there are no close relatives (Class I or Class II) or agnates (male relatives from the paternal side).
Potential Cognates:
A daughter of Mr. X’s maternal uncle (MC1).
A son of Mr. X’s maternal aunt (MC2).
Here, both MC1 and MC2 are cognates because their connection to Mr. X includes female lineage (through Mr. X’s mother).
Succession Process:
Since there are no Class I or Class II heirs, and no agnates, the property would pass to the cognates. MC1 and MC2, being the closest cognates available, would inherit Mr. X’s property. The division of the property between MC1 and MC2 would typically be equal unless specified differently by local laws or other influencing factors.
9. Order of succession among heirs in the Schedule.―Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.
1. Class I Heirs:
These heirs inherit the property simultaneously and exclude all others not listed in Class I.
Examples of Class I heirs typically include the widow, son, daughter, mother, and others specified in the act.
2. Class II Heirs:
These heirs are organized into entries that determine the order of priority for inheritance.
Heirs in each subsequent entry can only inherit if there are no heirs in the previous entry.
Simultaneous Inheritance by Class I Heirs: If a person dies leaving behind several heirs categorized under Class I, all these heirs will inherit the property together, equally dividing it among themselves, irrespective of their individual relationship to the deceased.
Sequential Inheritance by Class II Heirs: If there are no Class I heirs, the property will pass to Class II heirs. Here, the heirs in the first entry of Class II will inherit before those in the second entry. If there are no heirs in the first entry, then heirs in the second entry will inherit, and so on.
Examples:
1. Class I Heirs Inheriting:
Mr. A dies and is survived by his wife, son, and daughter. All three are Class I heirs and will share the inheritance equally.
2. Class II Heirs Inheriting:
Suppose Mr. B dies without any Class I heirs but is survived by his father (first entry of Class II) and a brother (second entry of Class II). Only the father will inherit the property because he is in the first entry of Class II, and heirs in the first entry are preferred over those in subsequent entries.
3. Further Class II Inheritance:
If Mr. C dies, and there are no Class I heirs and no heirs in the first entry of Class II, but he is survived by an uncle (say, in the third entry of Class II). If there are no heirs in the second entry either, the uncle would inherit the property as the next available heir in the schedule.
10. Distribution of property among heirs in class I of the Schedule.―The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:―
Rule 1
The widow or all widows together of the intestate receive one share of the property.
Example: If Mr. A dies leaving behind one widow, she receives one share. If he leaves behind two widows, they collectively receive one share to be divided equally between them.
Rule 2
Each surviving son, daughter, and the mother of the intestate each take one share.
Example: If Mr. B dies, leaving behind a mother, one son, and two daughters, his mother, each son, and each daughter would each receive one share.
Rule 3
The heirs in the branch of each predeceased son or each predeceased daughter of the intestate shall together receive one share.
Example: If Mr. C had a predeceased son who left behind two children, and a predeceased daughter who left behind three children, the two children of the son and the three children of the daughter would collectively receive one share for each branch (one share for all the son’s children together and one share for all the daughter’s children together).
Rule 4
Distribution of shares for branches of predeceased children:
For Predeceased Son’s Branch:
The share shall be equally divided among the widow(s) of the predeceased son and his children. If the predeceased son also had deceased children, their portion is shared equally among them.
Example: Mr. D’s predeceased son left behind a widow, one daughter, and one son (who also passed away but had two children). The widow, the daughter, and the two grandchildren (from the predeceased grandson) would share the one portion allotted to this branch equally. This means each group (widow, daughter, and the two children of the predeceased grandson as a group) gets an equal part of the share.
For Predeceased Daughter’s Branch:
The share shall be equally divided among her surviving children.
Example: If Mr. E’s predeceased daughter left behind three children, these three children would share their mother’s portion equally among themselves.
The Hindu Succession Act in India specifies clear rules for the distribution of property among heirs when a Hindu dies intestate (without a will). Below, I’ll explain the rules for distribution among Class I heirs with examples to illustrate how the property is divided according to the specified rules.
Overview of Class I Heirs:
Class I heirs include the widow, son, daughter, mother, and others such as the widow and children of a predeceased son or daughter. These heirs have the primary right to inherit the intestate’s property simultaneously and to the exclusion of all other heirs.
Examples of Distribution:
1: Simple Family Structure
Intestate: Mr. A, who dies leaving behind his wife Mrs. A, one son (S1), and one daughter (D1).
Distribution:
Rule 1: Mrs. A (the widow) gets one share.
Rule 2: S1 (the son) and D1 (the daughter) each get one share.
Each heir (the widow, son, and daughter) receives one share each. If the total estate is worth ₹300,000, each gets ₹100,000.
2: Complex Family Structure with Predeceased Heirs
Intestate: Mr. B, who dies leaving behind his wife Mrs. B, one daughter (D1), and the family of a predeceased son (S1) who left a widow (W1) and two children (C1 and C2).
Distribution:
Rule 1: Mrs. B (the widow) gets one share.
Rule 2: D1 (the surviving daughter) gets one share.
Rule 3: The heirs of S1 (the predeceased son) collectively get one share.
Rule 4 Distribution:
(i) Among S1’s heirs: W1 (the widow), C1 and C2 (the children) split one share equally. So, if one share is Rs.100000/-, W1, C1, and C2 each receive Rs. 33333/-. Thus if the total estate is worth Rs.300000/-:
Mrs. B receives Rs.100000/-.
D1 receives Rs 100000/-.
W1, C1, and C2 collectively receive ₹100,000, divided equally among them.
3: Involvement of Predeceased Daughter’s Children
Intestate: Mr. C, who dies leaving behind his wife Mrs. C, the family of a predeceased daughter (D1) who left two children (C1 and C2).
Distribution:
Rule 1: Mrs. C (the widow) gets one share.
Rule 2: None, as there are no surviving children directly of Mr. C.
Rule 3: The heirs of D1 (the predeceased daughter) collectively get one share.
Rule 4 Distribution:
(ii) Among D1’s heirs: C1 and C2 split one share equally.
If Mr. C’s estate is worth Rs 200,000/-:
Mrs. C receives Rs 100000/-.
C1 and C2 each receive Rs 50000/-.
11. Distribution of property among heirs in class II of the Schedule.
The property of an intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they, share equally.
Class II of the Schedule ensures that if there are no immediate family members (Class I heirs), the property is passed to more distant relatives in a predetermined order. Only relatives within the same entry share the inheritance, and all sharing is done equally among those present in that entry. This continues down the entries until an entry is found with surviving heirs.
If an intestate (a person who dies without a will) has no heirs classified under Class I, the property will be inherited by the heirs listed under Class II. These heirs are grouped into different entries, and only heirs within the same entry share the property equally. If there are heirs present in an entry, it excludes all subsequent entries from inheritance.
Examples:
Rule: Heirs specified in any one entry in Class II of the Schedule shall share the property equally.
Example:
X dies intestate, leaving no Class I heirs (like a spouse, children, or parents). Let us assume the following entries for Class II heirs:
Entry 1: Father
Entry 2: Brother, Sister
Entry 3: Grandfather, Grandmother
Example 1: Father is alive
X has a surviving father but no brothers or sisters. Since the father is listed in the first entry of Class II, he inherits the entire property. No other heirs are considered because the presence of an heir in a higher entry excludes those in lower entries.
Example 2: No father, but brother and sister are alive
X’s father has predeceased him, but he has one brother and one sister.
As per Class II, Entry 2 now comes into play because Entry 1 has no eligible heirs. The brother and sister will equally share the inheritance. X’s estate is worth Rs. 100000/-, each would receive Rs.50000/-.
Example 3: No immediate family but grandparents are alive
If all the heirs in Entries 1 and 2 have predeceased X or do not exist.
Only his grandparents are alive.
The grandparents are in Entry 3 of Class II. They would then inherit the property equally. If he had both a grandfather and a grandmother, each would get half of the estate.
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 laid rules of preference.
When a Hindu dies without leaving a will and without any heirs in Class I or Class II, the property is passed on to relatives referred to as “agnates” (related through male lineage) and “cognates” (related through male or female lineage but not directly in the male line). The rules for determining which agnate or cognate inherits are based on the closeness of their familial relationship to the deceased, defined in terms of “degrees.”
Examples
Rule 1: Fewer or No Degrees of Ascent Preferred
This rule means that among two competing heirs, the one who is generationally closer to the deceased (upwards) is preferred.
Example: If the choice is between a cousin (child of the deceased’s uncle) and an uncle (brother of the deceased’s father), the uncle is preferred because he is one generation closer (one degree of ascent less).
Rule 2: Fewer or No Degrees of Descent Preferred When heirs are at the same generational level above the deceased (e.g., two uncles), this rule applies to look downward. The heir with fewer or no descendants (children, grandchildren) is preferred.
Example: If both a cousin and another cousin (both are children of the deceased’s uncles) are potential heirs, and one cousin has children while the other does not, the cousin without children is preferred because they have fewer degrees of descent.
Rule 3: Equal Preference Leads to Simultaneous Inheritance
If neither Rule 1 nor Rule 2 determines a preference (i.e., both heirs are equally related in terms of ascent and descent), they inherit together.
Example: If two brothers of the deceased are the heirs, and both have the same number of children, they would share the inheritance equally because neither can be preferred over the other according to Rules 1 or 2.
Disclaimer:
1. This write up is meant up only for academic purposes and not for any professional purposes. It does not amount to any professional opinion. The readers are advised to consult legal experts in the domain for expert legal advice before acting on the text of this write up.
2. The Hindi Translation of the various relationships used in this write up has been cross checked with the Google and the same may or may not be correct as per the strict definition of relationships amongst Hindu culture.
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