According to Section 8(b) heirs in class II will succeed only in total absence of any heirs in class I. Heirs in class II are divided into nine groups; each group is mentioned in a separate entry in the Schedule.
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According to section 9 the heirs of first entry are preferred to heirs of second entry, and the heirs in the second entry are preferred to the heirs of third entry and so on in succession. Section 11 which lays down the mode of distribution of property among the heirs of class II of the Schedule runs as follows:
ADVERTISEMENTS:
“The property of an intestate shall be divided between the heirs specified in any one of the Entries in class II of the Schedule and they share equally.”
Thus where, there is only one heir in the Entry preferred, he or she alone shall take the whole of the estate. But when there are more heirs than one in the entry preferred, then all such heirs shall take equally and the heirs related to the intestate by full blood shall be preferred to heirs related by half blood.
List of heirs in class II of the Schedule:
(1) Father
(2) (i) Son’s daughter son,
ADVERTISEMENTS:
(ii) Son’s daughter’s daughter,
(iii) Brother,
(iv) Sister.
(3) (i) Daughter’s son’s son,
ADVERTISEMENTS:
(ii) Daughter’s son’s daughter,
(iii) Daughter’s daughter’s son,
(iv) Daughter’s daughter’s daughter.
(4) (i) Brother’s son,
(ii) Sister’s son,
(iii) Brother’s daughter and
(iv) Sister’s daughter.
(5) (i) Father’s father and
(ii) Father’s mother.
(6) (i) Father’s widow and
(ii) Brother’s widow.
(7) (i) Father’s brother and
(ii) Father’s sister.
(8) (i) Mother’s brother and
(ii) Mother’s mother.
(9) (i) Mother’s brother and
(ii) Mother’s sister.
Explanation:
In this Schedule references to a brother or sister do not include references to a brother or sister by uterine blood.
In K. Raj and others v. Muthamma, where a real brother died intestate leaving behind his sister, the court held that under Hindu Succession Act of 1956, the uterine sister could not inherit the property of her brother because in class II of the Schedule a note appended to the provision clarifies that sister does not include uterine sister that is to say, according to the said provision uterine sister will not be an heir of such brother’s property.
Illustrations:
(1) A dies intestate leaving behind his father, brother and sister’s daughter. The father will take entire estate to the exclusion of brother and sister’s daughter, because brother and sister’s daughter have been given in Entry 3 and 4 respectively whereas father has been placed in Entry one.
(2) A dies intestate leaving behind (1) his daughter’s son’s daughter, (2) daughter’s daughter’s son, (3) daughter’s daughter’s daughter and (4) brother’s son, (5) father’s father. The heirs stated above in serial Nos. 1 to 3 belong to Entry 3, the heir at serial No. 4 i.e. brother’s son belongs to Entry 4 and serial No. 5 heir i.e., father’s father belongs to Entry 5. Thus heirs specified in serial Nos. 1 to 3 will take together to the exclusion of all other heirs stated in serial Nos. 4 and 5. All the heirs stated in serial Nos. 1 to 3 will get equal shares, that is, 1/3 each in the total estate left by A.
In a case decided by Himachal Pradesh High Court two brothers were co-owners of an immovable property and one of them was lost for several years and hence he was presumed to have died, the other brother after some time also died leaving his widow and a daughter. The brother, presumed to have died had a sister alive.
The Court held that the share of that brother in the immovable property will devolve upon his sister but not upon the widow and the daughter of other brother. The sister is included in Entry 2 whereas the brother’s daughter and his widow are included in Entry 6 of class II of the Schedule and hence the sister would be a preferential heir.
It is worthwhile to note that the father’s widow and brother’s widow were not recognised as heirs but now they have been recognised so and also placed on high footing.
Illustration:
In the above illustration A dies leaving behind brother’s son, sister’s son, father’s sister and Father’s brother. BS and SS will inherit to the exclusion of FS and FB because BS and SS belong to Entry 4 whereas FS and FB belong to Entry 7.
In the above illustration A dies intestate leaving behind MU (Maternal uncle), MS (Mother’s sister), MGF (Maternal Grandfather) and MGM (Maternal Grandmother). MGF and MGM will inherit to the exclusion of MU and MS because MGF and MGM are heirs specified in Entry 8 whereas MU and MS are the heirs of Entry 9. Hence MGF and MGM will be preferred to MU and MS.