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Understanding Intestate and Testamentary Succession under Hindu Succession Law

In the Indian legal system, succession refers to the process of passing on the estate, rights, and obligations of a deceased person to their legal heirs. Succession can either be intestate (when a person dies without making a valid will) or testamentary (when a valid will is made). The Hindu Succession Act, 1956 governs the laws of inheritance for Hindus, Buddhists, Jains, and Sikhs, and lays down separate rules for both intestate and testamentary succession.
This article aims to provide a clear understanding of both forms of succession, especially under the Hindu Succession Act, and how it affects property rights and inheritance.

1. Testamentary Succession (With a Will)

Testamentary succession refers to the distribution of a deceased person’s property in accordance with the directions laid down in their will. A will is a legal declaration of a person’s intention with respect to their property, which takes effect after their death.
Key Aspects:
  • The testator (person making the will) has full freedom to distribute property as they wish, even if it deviates from the natural line of inheritance.
  • The will must be in writing, signed by the testator, and attested by at least two witnesses.
  • Probate (court certification of the will) is required in certain states such as West Bengal, Mumbai, and Chennai for immovable property.
Applicability to Hindus:
Under Section 30 of the Hindu Succession Act, any Hindu can dispose of their property through a will, including self-acquired and inherited property.
Advantages:
  • Ensures clarity and reduces disputes.
  • Enables property to be bequeathed to non-legal heirs or charitable causes.
  • Important tool for succession planning.

2. Intestate Succession (Without a Will)

When a Hindu dies without leaving a will, their estate is distributed among their heirs according to the provisions of the Hindu Succession Act, 1956. The Act lays out a detailed classification of heirs and the manner in which the estate is to be distributed.
  1. For Male Hindus
The property is distributed among legal heirs in the following order of priority:
Class I Heirs (Section 8 and Schedule):
  • Widow
  • Son/Daughter
  • Mother
  • Heirs of predeceased son or daughter (grandchildren)
These heirs inherit simultaneously and equally.
Class II Heirs (if no Class I heir exists):
  • Father
  • Siblings, nieces, nephews, etc.
Agnates and Cognates: If no heirs from Class I or II are available, the property goes to distant relatives related by blood or marriage.
Doctrine of Escheat: If no legal heirs are available, the property devolves to the State Government under Section 29.
  1. For Female Hindus
The inheritance rules for women were amended in 2005 to remove gender-based discrimination. A female Hindu’s property, in the absence of a will, is distributed as follows:
Heirs of a Hindu female:
  1. Sons and daughters (including children of any predeceased son or daughter) and husband.
  2. Heirs of husband.
  3. Mother and father.
  4. Heirs of father.
  5. Heirs of mother.
The key distinction is that in the absence of direct heirs, her property does not revert to her husband’s family immediately, but follows a defined order.

3. 2005 Amendment – Key Milestone

One of the most transformative developments in Hindu succession law came with the Hindu
Succession (Amendment) Act, 2005, which:
  • Gave daughters equal coparcenary rights in ancestral property, just like sons.
  • Applied retrospectively to all living daughters on the date of commencement, regardless of their birth date.
  • Strengthened the property rights of women in joint family property.
This amendment has helped to reduce gender bias and is a key legal development in property succession under Hindu law.

4. Practical Implications for Property Transactions

Whether succession is intestate or testamentary, clear documentation and legal verification are crucial for:
  • Mutation of property records.
  • Transfer of ownership in revenue records.
  • Preventing future disputes in real estate transactions.
Legal heirs may be required to submit a legal heir certificate, succession certificate, or probate order to establish their claim.
Understanding the difference between intestate and testamentary succession is essential for property owners and heirs alike. While making a will provides clarity and control, the Hindu Succession Act provides a structured fallback mechanism in the absence of one. Legal awareness in this area not only ensures smoother inheritance but also reduces the scope for future litigation — a particularly critical factor in Indian real estate, where property disputes are common.
For tailored advice on succession or property due diligence, consult a legal expert or visit RealtyLegal.in.

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