Inheritance Is Never In Abeyance – Explain


In legal parlance, inheritance is the devolution of a deceased owner’s properties to his closed legal heirs. Such devolution will be predicated upon the testament, or with reference to the prescription of law, qua absence of the will. Therefore, comprehensibly, property always has an owner and never be in abeyance. By endorsing the mentioned overarching principle, the law has propounded legislation of inheritance and succession in sensu lato.

The umbrella legislation, which governs the succession rights among Hindus, is The Hindu Succession Act of 1956. The said Act is widely applicable to all the people who come under the definition of Hindus, i.e. Sikhs, Jains, Buddhists, etc. since India is known to be a diverse and dynamic sub-continent that is not only for a specific religion. Law has spread the realm of this principle to the other communities as well. For instance, the Muslim Personal Law (Shariat) Application Act of 1937 has been implemented to govern the Muslim community in apropos of inheritance and succession, withal the Indian Succession Act for Christians and others.

Succession and Inheritance:

In layman’s terms, both succession and inheritance are analogous; since each of the two indicates the transmission of the property, rights, responsibility, and obligation of the deceased person to the descendant. Per contra, the subtle difference is that succession is the process by which all the properties belongs to the decedent will be dealt with i.e. who is the next successor of the estate belongs to the predeceased successor.  Meanwhile, inheritance refers to all the persons who have an interest in the property.


If Ram dies without leaving any testament, then his estate will transfer to his son, Rahul.  Thus, he becomes the successor of his father’s property on the grounds of intestate succession.

If Ram died intestate, lieu Raju, son Surya is claiming for the property of Ram. Herein Surya has rights in Ram property qua inheritance but not succession. The right to succession as well as inheritance is vested on Raju, since Ram is his father. Only after the Raju dies intestate, Surya can claim for succession. Thus, succession comes into light only upon the death of the owner. Howbeit, inheritance is a birthright and can be claimed after the share of the successor.

The subject of the said principle:

This principle elucidates that no property will remain ownerless, and upon the death of the owner, the succession right will pass to the closed legal heir. Abeyance will not occur unless and until there is hope for the preferable heir. The term ‘hope’ connotes the birth of a much preferable legal heir, who has conceived in the mother’s womb before the time of the owner’s death. In such a case, the inheritance will be postponed till the birth. Withal, if once the property devolved to one person, the same cannot be divested.

Illustration: if Ram dies intestate, his nephew Krishna has vested with the property since Krishna is the preferable heir at the time of his death. Later, the closest heir, Surya was born. Here Surya is not entitled to Ram’s property, as at the time of Ram’s death there is no hope for Surya’s birth withal the property was already vested on Krishna.

General descriptions:

Heir: A person who is legally entitled to receive the assets of the decedent irrespective of whether he has died testate or intestate.

Will: A normative instrument, in which a person i.e. the testator describes a person on whom his estate should be vested after his death.

Intestate succession: When a person dies without making a valid will, his estate will be devolved among/to the preferable heirs in the lights of succession law.

Testamentary succession: When the deceased person left a will, correspondingly, the devolution will take place.

Agnate:  Blood relation or kinship traceable from the male line.

Cognate: A person related or kinship traceable from not wholly from the male line, per contra through females.

Karta:  Head of a Hindu joint family, who manage expenses and properties of such family. Since the patriarchal society was in prevalence, usually, an elderly male will be the Karta.

Coparceners:  Every single person has a legitimate inborn property right in a Hindu undivided family.

Related legislations in India:

Hindu law:

The Hindu Succession Act of 1956,

It is catchall legislation, which draws the right of inheritance and succession into its ambit. This Act severally deals with the testamentary successions as well as intestate successions and propounds the rules separately for male and female successions. As mentioned earlier, Section 2 of the Act clarified that it applies to all people belongs to Hindu, Jain, and Buddhist religion. Regarding the types of successions, the Act states that the former will be based on the testament (will). Herein the law of inheritance has no role to play. But if the same is found unlawful, then in accordance with inheritance law, the estate devolution will be accomplished. Withal, for intestate succession, the state shall follow the same.

Prescribed rules for intestate succession:

The intricacies of intestate succession are that when someone dies intestate with having a greater number of legal heirs in the first place. Withal, possessing properties have unequal profits. In order to address this issue, the Act has prioritized the legal catena of heirs.

Classes of legal heirs Male dies intestate (Section 8 to 13 of the Act) Female dies intestate (Section 14 to 16 of the Act)
First claim/ class I Mother, spouse, and children

If the child has predeceased, then their spouse and children

Husband and children.
Second claim/ class II (in the absence of class I heirs) Father, siblings, sibling children and grandchildren of son/daughter. Husband’s heirs
Third claim/ class III (in the absence of class I and II heirs) Agnates (blood relative through male lineage) parents
Fourth claim/ class IV (in the absence of aforementioned classes of heirs) Cognates (relatives through female lineage) Heirs of the father
Fifth claim (if all the four classes of heirs were absent) Heirs of the mother


In the interest of women’s property rights, an amendment has been made in the year of 2005. Furthermore, as per this Act, if the decedent has zero heirs, consequently, the state would entitle the estate.

Islamic law:

Muslim Personal Law (Shariat) Application Act of 1937,

The discharge of succession and inheritance activities of a Muslim will come under the ambit of this Act. The same has been enrooted from the Shia law of succession and Hanafi succession law, which applies to the Sunnis and Shias. The sources of Muslim succession law include the holy Quran, Ijma, and Qiya. Since under Muslim law, there is no distinction between movable and immovable properties. Such properties will be considered as a combined property of the deceased owner, and the same is inheritable.

The Act mandates that the heir can inherit the decedent’s property only after paying the funeral expenses in conjunction with clearing all other debts. Islamic law prohibits the birthright of inheritance. Per contra, only after the death of a person, his heirs can claim the inheritance. Alike Hindu succession law, in Islamic law, testamentary succession takes place as per the will. Concerning intestate succession, the rules have been mentioned in the Act.

Who can claim the intestate succession?

Major classes of heir:


Classes Description Heirs
Sharers  or Quranic (proportion of shares have been fixed by the holy Quran)




Upon intestate death, the property will be divided among the sharers i.e. relatives, for the amount, which they are legally entitled. Husband/wife, parents, maternal and paternal grandmother, paternal grandfather, daughters (in the absence of son), son’s daughter, full sister, consanguine sister, and uterine sister.
Residuaries or Agnatic


The left out property will be shared among the residuaries.  Relatives through male lineage, for example, offspring of grandfather, father, and the deceased.
Distant kindred or Uterine heirs


In case of the absence of both sharers and residuaries, the distant kindred can make a claim. When all the mentioned heirs are absent with having only husband/ wife of the deceased. Then, after the share of such spouse, the leftover will be shared among the cognates and other left-outs in previous classes of heirs.


Christian law:

Indian Succession Act of 1925

This Act has its trace from several erstwhile legislations such as the Indian Succession Act of 1865, the Probate and Administration Act of 1881, and the Hindu Wills Act of 1870. Concerning its regime, the Act clearly elucidates under its Section 4 that it does not apply to Hindus or any other religion that comes under the definition of Hinduism. Further, Section 2(d) defines the term ‘Indian Christian’ as a person who has a domicile of origin in India. The legal right to make a valid testament is prescribed under Section 59 of the Act. Asides, clarity over testamentary succession, its procedures, and formalities have been opined under the catena of Sections 57 to Section 191 of the Act. In the case of intestacy death, the rules are as follows,

  1. There is no distinction between agnates and cognates.
  2. Christian law recognizes the rights of an adopted child but not either illegitimate child or polygamous marriages.
  3. The succession can either be per capita or per stirpes.


Per stripe distribution (representative basis): if the deceased person leaves behind 2 children as heir. In a case, where one child preceded the father in death, then his shares will be shared among the heirs of the predeceased child. And another half will be vested on the living child.

Per capita distribution (own accord or rights): Concerning the same mentioned scenario. As per this concept, since one of the beneficiaries preceded the father in death, the living child is entitled to inherit the whole estate.

Legal heirs:

  1. Spouse
  2. Children
  3. Parents
  4. Siblings
  1. Lineal consanguinity: direct line relations.  For example, son, father, and grandfather in the ascending line, or; son, grandson, and great-grandson in descending line.
  2. Collateral consanguinity:  Relations via having the same ancestor. For example, cousin.

Illustration: If a person dies intestate with having a great-grandfather, an uncle, and cousin as legal heirs. Since none of them is the closed kindred to the deceased. They will divide the estate equally among them.

Case Laws:

Manshan v. Tej Ram,[1] This is the case in which the intestate succession of the Hindu male has been described. It was stated that, if a Hindu male dies without either leaving a will or making an invalid testament will amount to intestate succession.

In the case of Cherotte Suganthan (D) v. Cherotte Bharathi,[2] wherein it has held that the spouse alias widow is entitled to continue her ownership on the vested property even she subsequently got remarried.

In the case of Pannalal v. Mt. Naraini,[3] the theory of the son’s pious obligation under Hindu law was clarified. The court has held that the son is obliged to discharge his deseeded father’s debts. But the same is limited to his shares in the inherited estate

The definition of the ancestral property has given in the case of U.R Virupakshaiah v. Sarvamma and Anr,[4] withal it is the inborn right of a child to claim the same. Whereas, regarding the self-earned property of a man, the definition was stated in the case of C.N. Arunachala Mudaliar v. C.A Muruganatha Mudaliar and others,[5] which it has held that the heirs do not have any rights to claim the self-acquired property of a man unless and until he dies intestate or mentioned in the will.

In Vidyadhari v. Sukhrana Bai[6]  it has held, a child born during a live-in together relationship too has inheritance rights and will be considered as a legal heir.  The same view was observed while deciding the case of Indra Sarma v. V.K.V Sarma[7].

The lucid status of law that may apply to an apostate Hindu, who has converted to Christianity, was stated in the case of Abraham v. Abraham[8].


As per the principle of ‘inheritance never is in abeyance’ a property always has an owner, and there can be no lapse in succession. The complexities in inheritance and succession arise only when the owner dies intestate. In order to obviate the same, the aforementioned Acts were enacted to govern the performance of succession and inheritance takes place in respective different communities of India. The principle also high lightened the rights of an unborn child; the same has been mentioned under section 13 of the transfer of property Act as Infant En ventre sa mere is deemed to inherit the property if only if he born alive. Even in the case, where the intestate person dies without leaving any heirs behind, such bona vacantia estate will be acquired by the government under the light of the concept, Escheat. Hence, under no circumstance, the property will be remains abeyance.

[1] (1980) Suppl SCC 367.

[2] AIR 2008 SC 1467.

[3] AIR 1952 SC 170.

[4] 2009 JT (1) 244 (SC), 2009 (1) scale 89.

[5]1953 AIR  495 1954 SCR  243.

[6] (2008) 2 SCC 238.

[7] (2013) 15 SCC 755.

[8] (9) MIA 195.

This Article is Authored by Snegapriya V S, 2nd year (B.A.,LL.B) Student at Vellore Institute of technology (VIT Law School).

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