Section 40 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 40 handles the common case in which an intestate's children and grandchildren are not all alive: some children survive, while others have died leaving children of their own. It divides the property by "stocks": one share for each surviving member of the nearest degree and one share for each deceased member of that degree who left descendants. If the family tree in your estate has gaps like this, a legal consultation can help you draw it correctly before dividing.
Where lineal descendants are not all in the same degree and the persons through whom the more remote descend are dead, divide the property into as many equal shares as there are descendants who either stood in the nearest degree at the intestate's death or, being of the same degree, died before him leaving descendants who survived him. Give one share to each survivor of that nearest degree, and give the share for each deceased one to his surviving child or children or more remote descendants, who take what their parent would have taken.
The text in two parts
As per the text of the Act consulted, section 40 has two sub-sections.
Sub-section (1): how many shares
If the intestate has left lineal descendants who do not all stand in the same degree of kindred to him, and the persons through whom the more remote are descended from him are dead, the property shall be divided into such a number of equal shares as may correspond with the number of the lineal descendants of the intestate who either stood in the nearest degree of kindred to him at his decease, or, having been of the like degree of kindred to him, died before him leaving lineal descendants who survived him.
Read slowly, this counts two kinds of persons in the nearest degree: those alive at the death, and those who died earlier but left descendants alive at the death. A person of that degree who died earlier leaving nobody who survived adds no share.
Sub-section (2): who takes each share
One such share is allotted to each of the lineal descendants who stood in the nearest degree at his decease. One such share is allotted in respect of each of the deceased descendants, and that share belongs to his surviving child or children or more remote lineal descendants, as the case may be. Those surviving children or remoter descendants always take the share which their parent or parents would have been entitled to if they had survived the intestate.
If you are unsure how degrees are counted, see our article on sections 23 to 28. The simpler case where descendants are all in one degree is in sections 36 to 39.
The Act's four illustrations
- (i) A had three children, John, Mary and Henry. John died leaving four children and Mary died leaving one, and Henry alone survived the father. On the death of A intestate, one-third is allotted to Henry, one-third to John's four children, and the remaining third to Mary's one child. (The copy spells Mary as "Marry" in this illustration; this is a printing slip.)
- (ii) A left no child but left eight grandchildren and two children of a deceased grandchild. The property is divided into nine parts, one of which is allotted to each grandchild, and the remaining one-ninth is equally divided between the two great-grandchildren.
- (iii) A has three children, John, Mary and Henry. John dies leaving four children; one of John's children dies leaving two children. Mary dies leaving one child. A afterwards dies intestate. One-third is allotted to Henry; one-third to Mary's child; and one-third is divided into four parts, one of which is allotted to each of John's three surviving children, and the remaining part is equally divided between John's two grandchildren.
- (iv) A has two children and no more, John and Mary. John died before his father, leaving his wife pregnant. Then A dies, leaving Mary surviving him, and in due time a child of John is born. The property is to be equally divided between Mary and the posthumous child.
Illustration (iv) rests on section 27(c), which treats those conceived at the death and later born alive like those born in the lifetime of the deceased; see our article on sections 23 to 28 linked above.
The shares at a glance
| Illustration | Shares (stocks) | Result |
|---|---|---|
| (i) | Three: Henry, John's line, Mary's line | One-third each; John's four children share one-third |
| (ii) | Nine: eight grandchildren plus the deceased grandchild's line | One-ninth each; the two great-grandchildren share one-ninth |
| (iii) | Three: Henry, John's line, Mary's line | John's third is split in four, the deceased child's part going to his two children |
| (iv) | Two: Mary, John's line | Equal division between Mary and the posthumous child |
A fresh example
Gopal Nair, an invented person, dies intestate and without a widow. He had three children: Asha, who survives him; Bimal, who died earlier leaving two children; and Chitra, who died earlier leaving no child. The children are the nearest degree. Counting under sub-section (1): Asha stood in the nearest degree at his death, and Bimal was of the like degree and died before him leaving descendants who survived him, so two shares are counted. Chitra died leaving nobody, so no share is counted for her. The property is therefore divided into two equal shares: one to Asha and one to Bimal's two children, who divide it between them. The names and numbers are invented; the method is the Act's.
Where the text is silent
- Section 40 does not mention the widow's share; section 36 says the distribution is after deducting it.
- It does not say what the property is worth or how debts are paid; those matters are outside the section.
- The section's rules end with sub-section (2). The text prints nothing about adopted or step relatives.
Points to flag
- "Marry" for Mary in illustration (i) is a printing slip.
- The text does not use the word "stock" or "per stirpes"; this article uses "stocks" only to describe what sub-sections (1) and (2) do.
Later amendments
The copy consulted is an unofficial print showing amendments up to the Indian Succession (Amendment) Act, 2002 (26 of 2002). Later amendments should be checked.
Need help with an estate where some heirs have died?
When a branch of the family has died out or passed on, the shares depend on who survived the intestate and in which degree. Our legal consultation page shows how to request a review of the family tree and the division.
Key takeaways
- Count shares by the nearest degree: each survivor, plus each deceased member who left descendants alive at the death.
- A deceased member's share goes to his surviving child or children or more remote descendants.
- Those descendants take exactly what their parent would have taken.
- A posthumous child counts (illustration (iv)).
- A deceased member who left nobody adds no share.
Read next
- Sections 36-39: distribution among children, grandchildren and remoter descendants
- Sections 41-45: intestate without lineal descendants
- Sections 46-49: mother, remoter kindred and advancements not brought into hotchpot
- Capital gains on inherited property
Disclaimer: Based on an unofficial print of the Indian Succession Act, 1925 showing amendments up to the Indian Succession (Amendment) Act, 2002 (26 of 2002), as consulted on 2 October 2026. It explains the words of the statute only; later amendments, State amendments and rules, court fees and the way courts apply these sections should be checked. This article is general information, not legal advice; check the official text before acting.