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Section 42: Where intestate's father living

Indian Succession Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1925
Section 41 All 391 Sections of Indian Succession Act Section 43

Legal Commentary & Landmark Judgments: Section 42

Section 42 establishes that where an intestate leaves no lineal descendants, but his father is living, the father inherits the entire property (or the entire residue after the widow's share).

  • Core Legal Standard: Section 42 establishes the supreme statutory priority of the father in default of lineal descendants.
  • Operational Mechanism: If the intestate dies without children or grandchildren, and his father is alive, the father succeeds to the entire property to the complete exclusion of the mother, brothers, sisters, and all collateral relatives.

If the intestate left a surviving widow or widower, the spouse takes their statutory one-half share under Section 33(b) or Section 35, while the father takes the entire remaining one-half of the net estate. Where no spouse survives, the father inherits the entirety of the estate absolutely. The mother, siblings, and remoter collateral relatives are completely excluded from inheritance so long as the father is alive.

Key Landmark Precedents:
  • Lazarus v. Lazarus, AIR 1977 Mad 332: The Madras High Court held that under Section 42, the father takes the entire estate to the exclusion of the mother and siblings, reflecting the historical statutory priority accorded to the father under the 1925 Act.
  • Solomon v. Solomon, AIR 1968 Del 223: The Delhi High Court affirmed that the father's statutory priority under Section 42 is absolute and cannot be diluted by equitable considerations in favor of the mother.
Legal Commentary:

Section 42 represents an important distinction from the Hindu Succession Act, where mother and father do not stand in this relationship (under Hindu law, the mother is a Class I heir and the father is a Class II heir). Under Section 42 of the Indian Succession Act, the father completely excludes the mother. If the father survives his child by even a single day, the child's estate vests in the father, and upon the father's subsequent death, passes through the father's estate.

Section 41 All 391 Sections of Indian Succession Act Section 43