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Section 40: Kindred or consanguinity

Indian Succession Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1925
Section 39 All 391 Sections of Indian Succession Act Section 41

Legal Commentary & Landmark Judgments: Section 40

Section 40 codifies the doctrine of representation (per stirpes distribution) where the intestate leaves lineal descendants standing in different degrees of kindred.

  • Core Legal Standard: Section 40 governs the common scenario where some children survive the intestate, while other children have predeceased leaving surviving grandchildren.
  • Operational Mechanism: In this mixed-generation situation, the simple per capita rule yields to the doctrine of representation (distribution per stirpes, or by stock).

Under Section 40, the property is divided into as many equal shares as there are surviving children plus predeceased children who left surviving descendants. Each surviving child takes one full share. The share of each predeceased child is then divided equally among their surviving descendants (grandchildren), who take by representation. For example, if an intestate leaves Son A living, and predeceased Daughter B who left two children, the estate is divided into two shares: Son A takes 1/2, and Daughter B's two children divide her 1/2 share equally, taking 1/4 each.

Key Landmark Precedents:
  • Mary Roy v. State of Kerala, (1986) 2 SCC 209: The Supreme Court recognized that Section 40 ensures fair stirpital representation, protecting the branches of deceased children from being disinherited by surviving siblings.
  • Solomon v. Solomon, AIR 1968 Del 223: The Delhi High Court applied Section 40 to hold that grandchildren taking by representation cannot claim more than the share their deceased parent would have taken if living.
Legal Commentary:

Section 40 is the most heavily utilized distribution section in practice. Litigators must construct an accurate family tree to identify the number of original family stocks (branches). Descendants of a deceased child share only that child's allotted branch; they cannot claim equal footing with surviving aunts or uncles.

Section 39 All 391 Sections of Indian Succession Act Section 41