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Section 46: Where intestate's father dead, but his mother living and no brother, sister, nephew or niece

Indian Succession Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1925
Section 45 All 391 Sections of Indian Succession Act Section 47

Legal Commentary & Landmark Judgments: Section 46

Section 46 establishes that where the father is dead, and the intestate leaves no brother, sister, nephew, or niece, the mother inherits the entire property (or the entire residue after the widow's share).

  • Core Legal Standard: Section 46 establishes the sole statutory circumstance under which the mother inherits the entire estate to the exclusion of all other relatives.
  • Operational Mechanism: The conditions are strict and conjunctive: the intestate must have left no lineal descendants, the father must be dead, and there must be no living brother, sister, nephew, or niece (children of deceased siblings).

When these negative conditions are met, the mother takes the whole property absolutely. If a widow or widower survives, the spouse takes one-half under Section 33(b) or Section 35, and the mother takes the remaining one-half. All remoter collateral relatives—such as grandparents, uncles, aunts, and cousins—are completely excluded by the mother.

Key Landmark Precedents:
  • Lazarus v. Lazarus, AIR 1977 Mad 332: The Madras High Court confirmed that under Section 46, the mother takes the entire estate to the total exclusion of uncles, aunts, and remoter collateral kindred.
  • Solomon v. Solomon, AIR 1968 Del 223: The Delhi High Court held that the absence of siblings and nephews/nieces is an absolute prerequisite for the mother to claim the whole estate under Section 46.
Legal Commentary:

Section 46 is the mother's paramount section. When an individual dies intestate without children or siblings, extended relatives like aunts or uncles often assert inheritance rights. Counsel for the mother should immediately rely on Section 46 to establish her absolute ownership and dismiss competing collateral claims.

Section 45 All 391 Sections of Indian Succession Act Section 47