Legal Jungle

Intestate Succession Under Testamentary Succession Act

This article is written by Bhumika Ravariya, a student of CWC LAW COLLEGE, currently pursuing a third year in BLS LLB. This article is about intestate succession under the testamentary succession act.


The Intestate Succession under the Testamentary Succession Act governs the distribution of property in the absence of a valid will. The Act sets out a specific order of priority for the distribution of assets among the deceased’s surviving relatives. If the deceased person is survived by a spouse, the spouse is entitled to the whole estate. However, If the deceased is not survived by a spouse, the estate is distributed to the deceased’s children equally. Moreover, if any of the children predecease the deceased, then their share is divided equally among their children.

If the deceased person is not survived by a spouse or children, the estate is distributed among their surviving parents. However, If there are no surviving parents, the estate is divided equally among the deceased’s siblings or their children. If there are no surviving siblings or their children, the estate passes to the deceased’s grandparents, aunts, uncles, or their children.


Intestate succession under the Testamentary Succession Act is the process of distributing the property and assets of a person who dies without leaving a valid will. It outlines how the property is distributed among the legal heirs of the deceased.

According to the Testamentary Succession Act, the legal heirs of the deceased are divided into two categories:

  1. Class I heirs
  2. Class II heirs.

Class I heirs include the spouse, children, and mother of the deceased.

If the deceased has a surviving spouse and children, they will receive an equal share of the property.

If the deceased has no surviving spouse, the children will receive an equal share of the property. However, If the deceased has no surviving spouse or children, the mother will receive the entire property. Class II heirs include the father, siblings, and other relatives. If the deceased has no Class I heirs, the property will be distributed among the Class II heirs.

The father will receive an equal share of the property with the siblings. If the deceased has no surviving father, the siblings will receive an equal share of the property. If the deceased has no surviving siblings, the property will be distributed among the other relatives. However, If the deceased has no legal heirs, the property will be transferred to the government. It is important to note that the distribution of property under intestate succession may vary depending on the personal laws of the deceased. For example, if the deceased was a Hindu, the distribution of property will be governed by the Hindu Succession.


  • Testamentary succession: The passing of property to the beneficiaries named in the will.
  • Intestate succession: The passing of property without testamentary disposition, in accordance with the rules of succession effective in the given state.

Distributions on intestacy as per Hanafi Law:

As per Hanafi Law, there are three classes of heirs, namely:

 (i) “Sharers”- those Who are entitled to a prescribed share of the inheritance as per Mohammedan law

(ii) “Residuaries” are those who take no prescribed share, but succeed to the residue After the claims of the Sharers are satisfied.

(iii) “Distant Kindred” are all those relations by blood who are neither Sharers nor Residuary. The first step in the distribution of the estate of a deceased Mohammedan (governed by Hanafi law), after payment of his funeral expenses, debts, and legacies, is to allow the respective shares to such of the relations as belong to the class of Sharers who are entitled to a share.

The next step is to divide the residue (if any) among such of the Residuaries as are entitled to the residue. If there are no Sharers, the Residuaries will succeed in the whole inheritance. If there are neither Sharers nor Residuaries, the inheritance will be divided among such of the distant kindred as are entitled to succeed thereto. The distant kindred is not entitled to succeed so long as there is any heir belonging to the class of Sharers or Residuaries. But there is one exception to the above rule where the distant kindred will inherit with a Sharer, and that is where the wife or husband of the deceased is the sole Sharer and there are no other Sharers or Residuaries.

The question as to which of the relations belonging to the class of Sharers, Residuaries, or distant kindred, are entitled to inherit the estate of the deceased and the share which such relation will receive will depend upon the relationship of the Sharer or Residuary with the deceased and the other surviving relations.

When a Muslim die there are four duties that need to be performed
  1. Pay funeral and burial expenses.
  2. Paying debt of the deceased.
  3. Determine the value/will of the deceased (which only can be a maximum of one-third of the property).
  4. Distribute the remainder of the estate and property to the relatives of the deceased according to the Muslim inheritance.

Muslim law, in general, does not recognize the principle of representation and provides for the rule of nearer in degree excluding the remoter. This rule is applicable to shares, residuary, and also distinct kindred.

  • Firstly, the father would exclude the paternal grandfather, and the son would exclude the son’s son.
  • Secondly, the heir who is related to the deceased through another person would be excluded in the presence of the one through who he or she is related to the deceased.

For e.g., a sister or a brother is related to the deceased through the father, and if the father is present, they would be excluded from his presence. (The mother is an exception to the rule of exclusion, the presence of the mother won’t exclude brother/sister relations)

  • Thirdly, full blood will exclude half-blood, but the uterine relationship won’t be excluded.
  • There are five primary heirs, who are present and would not be excluded and would invariably inherit the property.

They are surviving spouses (husband/wife), sons, daughters, mothers, and fathers.

  • The son is a residuary but the rules of inheritance are so designed that he would always inherit the property.

Husband:- Husband will get 1/4th

If no lineal descents then the husband will get ½

Wife:- If wife and children inherit together, then the wife will get 1/8th

If there are no children, then the wife will get 1/4th.

If multiple wives are there then the share will be divided among the wives.

Mother:- If the mother inherits with children, then the mother will get 1/6th.

If there are no children, the mother will get 1/3rd.

Father:- Father has fixed 1/6th.


A Muslim woman, W dies leaving behind her parents M and F, her husband H, and three daughters D1, D2, and D3.

The share of each W is 1/4th.

The share of M and F is 1/6th each.

Three daughters collectively will take 2/3rd.

The sum total would be 1/4th +1/6th +1/6th +2/3rd = 15/12


If nobody is alive to take the balance share, the fixed share is given. Also, there is the balance left then is called an excess share and is returned to the people with the fixed share. This is called radd or return (only applies when there are no residuary) (widow and widower will not participate if there are any other shares or distant kinder).


In conclusion, the Testamentary Succession Act provides a clear and structured system for the distribution of assets in cases of intestacy. It is important to note, however, that creating a valid will remains the best way to ensure that your assets are distributed according to your wishes after your death.

Also Read: Guardianship under Muslim Law, Click Here!


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