Order of succession among agnates and cognates

What is the Order of succession among agnates and cognates as per Indian Law ?

As per the Hindu Succession Act, 1956, where a Hindu male dies intestate his property devolves upon his heirs of Class I mentioned in the schedule to the Act. If there is no Class I successor, then the property devolves upon the Class II heirs of the deceased. If there is no Class II heir, then the property devolves upon the agnates and cognates among whom agnates are preferred over the cognates.

AGNATES:

When two persons are related to each other by blood or adoption but wholly through males, they are said to be agnates of each other. For example, a person is an agnate of his father’s brother’s son. It has been held that being related by blood does not mean being related by birth. Hence ‘agnate’ also includes relations by marriage. Therefore a father’s brother’s widow is an agnate of the deceased and entitled to his property. Similarly a father’s brother’s daughter would be an agnate.

COGNATES:

 When two persons are related to each other by blood or adoption but not wholly through manes, they are said to be cognates of each other. For example, A’s father’s sister’s son would be a cognate of A. Similarly, A’s brother’s daughter’s son would be A’s cognate. It has been held that whenever a relationship of a person with another female (or more than one female) intervenes any where in the line, one is a cognate to another. Thus the daughter’s son and daughter and son’s daughter’s son and daughter are cognates.

ORDER OF SUCCESSION AMONG AGNATES AND COGNATES:

 In case of non-availability of Class I and Class II heirs, the property of the deceased devolves upon his agnates and if there are no agnates, upon his cognates. Therefore when agnates are present, cognates would not get any share in the property of the deceased. However, if more than one agnates or cognates are present, then the order of succession among them is governed by the provisions of section 12 of The Hindu Succession Act, 1956. Sections 12 provides as under:

12.Order of succession among agnates and cognates.

 The  order   of succession  among  agnates or cognates, as the case may be,  shall  be determined  in  accordance  with the rules  of  preference  laid  down hereunder:-

Rule 1.-Of two heirs, the one who has fewer or no degrees of ascent is preferred.

Rule 2.-Where the number of degrees of ascent is the same or none,  that heir is preferred who has fewer or no  degrees  of descent.

Rule 3.-Where  neither heir is entitled to be  preferred  to  the other under Rule 1 or Rule 2 they take simultaneously.

Rule 1:

Of two heirs, the one who has fewer or no degrees of  ascent is preferred.

This rule says that of two heirs, the one who has fewer or no degrees of ascent is preferred means that an heir who claims as the descendant of the Hindu male who has died intestate or one who is in the nearer line to him is to be preferred to one who claims in a remoter line. Thus a son’s son’s son being a descendant in the line of the deceased is to be preferred to brother’s son’s son who comes in father’s line which is remoter than one’s own line. Again brother’s son’s son being in the father’s line is to be preferred to father’s brother’s son’s son who is in a remoter line namely the line of grandfather. The rule lays down merely that a relation who traces his relationship to the deceased either in the deceased’s own line or in the line of a nearer ancestor is to be preferred to one who traces his relationship in the line of a remoter ancestor in the male line.

Rule 2:

Where the number of degrees of ascent is the same or none,  that heir is preferred who has fewer or no degrees  of descent.

This rule lays down that in the case of agnates or cognates, where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent. This means the same thing as that where a person in the same line is nearer to the common ancestor than another relation of the same line, the former is preferred to the latter. Thus a father’s brother’s son being nearer than  father’s brother’s grandson is preferred to the latter though both of them are in the same line, namely the line starting from father’s father. So also the brother’s son’s son is to be preferred to the brother’s son’s son’s son for though both the claimants are in the same collateral line beginning from father, brother’s son’s son is nearer or has fewer degrees of descent than the brother’s son’s son’s son. In the same way a son’s son’s son’s son is to be preferred to a son’s son’s son’s son’s son for though the claimants are in the same line namely the line of the deceased, the former is a nearer degree than the latter.

 

Rule 3:

 Where  neither heir is entitled to be  preferred  to  the other under Rule 1 or Rule 2 they take  simultaneously.

Where the heirs are equal in the descent in the same line they take simultaneously. Father’s father’s father and father’s father’s mother take equally being in the same line; so also son’s son’s son’s daughter and son’s son’s son’s son take equally both being in the line of the deceased and neither being nearer in descent. In the application of these rules, there is no discrimination on the ground of sex. It should however not be forgotten that a relation who is an agnate though in a remote degree of ascent or descent or of both is to be preferred to a cognate who may be in a nearer degree or nearer line or both.

Computation of degrees:

Another question that arises is that of computation of degrees. This is answered by section 13 which provides as under:

13. Computation of degrees.

 (1) For the purposes  of  determining the order of succession among  agnates or cognates, relationship  shall be  reckoned  from the  intestate to the heir in terms  of  degrees  of ascent or degrees of  descent or both, as the case may be.

 (2)  Degrees  of ascent and degrees of descent shall be  computed  inclusive of the intestate.

(3)  Every  generation constitutes a degree either  ascending  or   descending.

This section lays down that for the purpose of determining the order of succession among agnates and cognates, the relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both as the case may be. Degrees of ascent and degrees of descent shall be computed inclusive of the intestate. Every generation constitutes a degree either ascending or descending.

About the Author

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Vakilno1 is a group of Law Enthusiasts and Legal Experts in India with a passion to provide the latest info and articles on Indian Legal System

 

 

 

 

 

 

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  1. […] Order of succession among agnates and cognates… […]

  2. I have a question.

    The definition of Agnates covers daughters as they are undoubtedly blood relatives of their father. Why then did the law before the advent of the Hindu Succession Act, not count them as Agnates? And why are all examples explaining the law on this always about male relatives. Can an Aunt, e.g. Father’s sister not fit the definition?

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