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Rules OF Partition under Mitakshara Law

Rules OF Partition under Mitakshara Law


Hindu Succession Act 1956 does not apply to the property of a Hindu who is married under the SMA to a non-hindu. HSA is dealing separate properties of mitakshara male, the separate and coparcener properties of Dayabaga male and the undivided interest in the joint family property of a mitakshara coparcener.


Heirs to a Hindu male (Mitakshara coparcener) fall under five categories:

  1. Class 1 heirs : Mother, widow, daughter, son, widow of a predeceased son, daughter of a predeceased son, son of a predeceased son, widow of a predeceased son of a predeceased son, son of a predeceased son of a predeceased son, daughter of a predeceased son of a predeceased son, daughter of a predeceased daughter, son of a predeceased daughter, daughter of a predeceased daughter of a predeceased daughter, son of a predeceased daughter of a predeceased daughter, daughter of a predeceased son of a predeceased daughter, daughter of a predeceased daughter of a predeceased son. Sec 10 deals with distribution of the property of the person who has died intestate among the class 1 heirs. 

  • Sons, daughters, mother of the propositus will each take one share. 

  • The widows take one share cumulatively and divide it equally among themselves. 

  • Among the heirs of the branches of a predeceased son, son of a predeceased son of a predeceased son and predeceased daughter, doctrine of representation will apply that means heirs in each branch will take the same share which their parent would have taken. 


  1. Class 2 heirs : Father is the first category because father is the karta and is not thought to be dependent. There are total 9 categories. 


  1. Agnates : one who is related to the person in question by males. Sec. 8 of HSA does not give a list of agnates as in which order they re entitled to succeed but Sec. 12 lays down rules of preference. Sec. 13 lays down the rules for determining the order of succession. 

Degrees of ascent and descent is calculated from the person who is dying. Each generation is going to constitute one degree (13(2)). 

For eg : A - B - C - D, if D is dying, A will be 4 degrees ascent from D and if A is dying, then D will be 4 degrees descent from A.

As per Sec 12 Rule 1: 

In case of brother A who has son X who has a daughter Y and paternal uncle’s son B, Y will be preferred. This is because Y will be written as father’s son’s son’s daughter and B will be written as father’s father’s son’s son. Y has two degrees of descent and B has three degrees of ascent,


Rule 2: 

Eg- In case of brother’s son’s daughter and brother’s son’s son’s daughter, the brothers will be collateral agnates. There is common two degree of ascent and 3 degrees of descent in former and 4 degrees of descent in latter, hence, brother’s son’s daughter will be preferred. 


Rule 3:

In case of son’s son’s son’s son and son’s son’s son’s daughter, both first sons stand in the same degree of descent and there is no degrees of descent. Therefore, neither will be preferred per se. 


  1. Cognates


  1. Government : if a Hindu male on his death does not leave behind any of the above mentioned categories and does not will it to anybody else, then the entire property devolves on to the government. This is called escheat. It takes the property with the obligation and liabilities of the person who is dying.

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