Menu

Understanding Intestate and Testamentary Succession Under Indian Law: A Hindu Succession Act Perspective

Succession is the legal process of inheritance — determining who gets what after the death of a person. In India, the law of succession is governed by both statutory laws and personal laws, depending on the religion of the deceased. Among Hindus, the Hindu Succession Act, 1956 governs both intestate (without a Will) and testamentary (through a Will) succession.
This article explains the differences, processes, and key legal principles of both intestate and testamentary succession as applicable to Hindus, with a special focus on the Hindu Succession Act, and the rights of heirs including women.

📘 What Is Intestate Succession?

Intestate succession occurs when a person dies without making a Will. In such cases, property is distributed to legal heirs based on rules laid down in the Hindu Succession Act, 1956.
🔹 Applicability
The Hindu Succession Act applies to:
It does not apply to Muslims, Christians, Parsis, or Jews, who are governed by their respective personal or statutory laws.

📚 Classification of Heirs under Intestate Succession

Under Section 8 of the Act (for male Hindus), the property devolves first upon Class I heirs:
👪 Class I Heirs (Sec 8 & Schedule)
These include:
  • Son, daughter
  • Widow
  • Mother
  • Son/daughter of a pre-deceased son
  • Son/daughter of a pre-deceased daughter
  • Widow of a pre-deceased son
  • And others as per the amended schedule
If Class I heirs are not present, the property devolves on:
🔸 Class II Heirs:
Includes:
  • Father
  • Brother, sister
  • Children of siblings
  • Other relatives listed in the Schedule
If no Class II heirs exist, the property goes to:
  1. Agnates (relatives through male lineage)
  2. Then Cognates (relatives not wholly male lineage)

👩‍👧 Intestate Succession of a Hindu Female (Section 15 & 16)

The rules for a Hindu woman dying intestate are slightly different:
➤ Property devolves as follows:
  1. Sons and daughters (including children of any pre-deceased son or daughter) and husband
  2. Heirs of husband
  3. Parents
  4. Heirs of father
  5. Heirs of mother
This hierarchy emphasizes the husband’s heirs over the woman’s parental family, a provision often critiqued as gender-biased.

🧾 What Is Testamentary Succession?

Testamentary succession occurs when a person leaves a valid Will expressing their intentions for property distribution.
Under Section 30 of the Hindu Succession Act, a Hindu can bequeath property through a Will to any person — not limited to legal heirs.
✅ Essentials of a Valid Will:
  • Must be in writing
  • Signed by the testator
  • Attested by two witnesses
  • Should clearly state the intention to distribute property after death
Wills can be registered, though it’s not mandatory. A registered Will reduces chances of legal disputes.

⚖️ Key Differences Between Intestate and Testamentary Succession

Aspect

Intestate Succession

Testamentary Succession

Legal Basis

No Will

Will is present

Governing Law

Hindu Succession Act, 1956

Hindu Succession Act (Sec 30) + Indian Succession Act, 1925

Beneficiaries

Class I, II heirs, etc.

Anyone (including outsiders)

Role of Court

Limited (for issuance of legal heir certificate)

Probate may be required if challenged

Control of Deceased

None

Full discretion to distribute property

👩‍⚖️ Key Judicial Developments

  • Vineeta Sharma v. Rakesh Sharma (2020): Daughters have equal coparcenary rights as sons, even if the father died before the 2005 amendment.
  • Danamma v. Amar (2018): Reinforced that daughters are entitled to property as coparceners under Mitakshara Hindu law.

Document

Purpose

Legal Heir Certificate

Required for intestate cases for mutation, claims

Succession Certificate

Needed to claim movable assets like bank deposits

Probate (if Will exists)

Legal validation of the Will

Death Certificate

Mandatory for all cases of succession

📄 Important Documents in Succession

Succession—whether intestate or testamentary—is a sensitive yet crucial area of personal law. The Hindu Succession Act lays down a structured framework for inheritance while also recognizing the individual’s right to willfully distribute assets.
It’s important to:
  • Draft a clear, legal Will if you wish to control who inherits your property
  • Maintain updated legal documents and family records
  • Seek legal guidance when dealing with disputed or unclear inheritance matters
Whether you’re a buyer, heir, or legal advisor, understanding these provisions can help avoid conflicts and ensure smooth property transition.
For tailored advice on succession or property due diligence, consult a legal expert or visit RealtyLegal.in.

You May Like