Where the intestate has not left surviving him any child but has left a grandchild or grandchildren and no more remote descendant through a deceased grandchild, the property shall belong to his surviving grandchild if there is one, or shall be equally divided among all his surviving grandchildren.
Illustrations:
(i) A has three children, and no more, John, Mary and Henry. They all die before the father, John leaving two children, Mary three and Henry four. Afterwards A dies intestate, leaving those nine grandchildren and no descendant of any decreased grandchild. Each of his grandfather will have one-ninth.
(ii) But if Henry has died, leaving no child, then the whole is equally divided between the intestate's five grandchildren, the children of John and Mary.
Legal Commentary & Landmark Judgments: Section 38
Section 38 governs distribution where the intestate leaves no surviving children, but only grandchildren, providing that the property is divided equally among all surviving grandchildren per capita.
Crucially, Section 38 applies a per capita distribution, not a per stirpes distribution. Because all surviving lineal descendants stand in the exact same degree of kindred (second degree) to the intestate, they take equal shares in their own right, rather than representing their deceased parents. For example, if Child A had one child (Grandchild 1) and Child B had three children (Grandchildren 2, 3, 4), and both A and B are dead, the estate is divided into four equal shares (1/4 each), not two parental branches.
Section 38 contains an important nuance that differs from Hindu law. Under Hindu law, grandchildren inherit per stirpes (representing their deceased parent's branch). Under Section 38 of the Indian Succession Act, if ALL children are dead, the stirpital principle ceases, and all grandchildren inherit equally per capita. Practitioners must explain this vital distinction when calculating shares in multi-generational estates.