Sections 41-45 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.
Sections 41 to 45 apply where an intestate leaves no lineal descendants. They say who takes if the father is alive (section 42), and, if the father is dead, how the mother, brothers and sisters and the children of those who have died share (sections 43 to 45). The sections continue in sections 46 to 48, which have their own article.
If the intestate's father is living, he succeeds to the property (section 42). If the father is dead and the mother and brothers or sisters are living, with no child of a deceased brother or sister, the mother and each brother or sister take equal shares (section 43). Where children of a deceased brother or sister also survive, they join in equal shares taking only what their parent would have taken (sections 44 and 45). The widow's share, if any, is deducted first (section 41).
Section 41: where these rules come in
As per the text of the Act consulted, where an intestate has left no lineal descendants, the rules for the distribution of his property (after deducting the widow's share, if he has left a widow) are those in sections 42 to 48. If you are applying these rules to a real family, a legal consultation can help you check who is in which category before the shares are fixed.
For the widow's share, see our article on sections 31 to 35.
Section 42: father living
If the intestate's father is living, he shall succeed to the property. The section says nothing about the mother or brothers and sisters in that case.
Section 43: father dead; mother, brothers and sisters living
If the intestate's father is dead, but the intestate's mother is living and there are also brothers or sisters of the intestate living, and there is no child living of any deceased brother or sister, the mother and each living brother or sister shall succeed to the property in equal shares.
The Act's illustration. A dies intestate, survived by his mother and two brothers of the full blood, John and Henry, and a sister Mary, who is the daughter of his mother but not of his father. The mother takes one-fourth, each brother takes one-fourth, and Mary, the sister of half blood, takes one-fourth. This follows section 27(b), under which there is no distinction between full and half blood; see our article on sections 23 to 28.
Section 44: mother, a brother or sister, and children of a deceased brother or sister
If the father is dead but the mother is living, and a brother or sister and the child or children of a brother or sister who died in the intestate's lifetime are also living, then the mother and each living brother or sister, and the living child or children of each deceased brother or sister, are entitled to the property in equal shares. Such children (if more than one) take in equal shares only the shares which their respective parents would have taken if living at the intestate's death.
The Act's illustration. A, the intestate, leaves his mother, his brothers John and Henry, and also one child of a deceased sister, Mary, and two children of George, a deceased brother of the half blood who was the son of his father but not of his mother. The mother takes one-fifth, John and Henry each take one-fifth, the child of Mary takes one-fifth, and the two children of George divide the remaining one-fifth equally between them.
Section 45: mother and children of deceased brothers and sisters
If the father is dead but the mother is living, and the brothers and sisters are all dead, but all or any of them have left children who survived the intestate, the mother and the child or children of each deceased brother or sister are entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the intestate's death.
The Act's illustration. A, the intestate, leaves no brother or sister but leaves his mother and one child of a deceased sister, Mary, and two children of a deceased brother, George. The mother takes one-third, the child of Mary takes one-third, and the children of George divide the remaining one-third equally between them.
The cases at a glance
| Who survives (father dead unless stated) | Who takes | Section |
|---|---|---|
| Father living | The father | 42 |
| Mother and living brothers or sisters; no child of a deceased brother or sister | Mother and each brother or sister, equal shares | 43 |
| Mother, a living brother or sister, and children of a deceased brother or sister | Mother, each living brother or sister, and each deceased brother's or sister's line, equal shares | 44 |
| Mother; all brothers and sisters dead; some left children | Mother and each deceased brother's or sister's line, equal shares | 45 |
A fresh example
Neeraj Bhatt, an invented person, dies intestate. He has no widow, no child, and his father is dead. His mother is living, so is his sister Pooja, and his brother Rakesh died earlier leaving two children. Section 44 applies: the property is divided into three equal shares, one to the mother, one to Pooja, and one for Rakesh's line, which his two children divide equally between them, taking only the share their father would have taken. The example mirrors the Act's own illustration to section 44 with invented names.
Where the text is silent
- Sections 42 to 45 do not deal with a living father together with a living mother; section 42 gives the property to the father if he is living.
- The sections do not say what is done if the mother is dead but brothers and sisters survive; that case is covered by section 47, which has its own article.
- They print no form or procedure; they set out shares only.
Points to flag
- Apostrophes are missing in the copy ("intestates father"); read them in.
- The Act's illustrations use "A , the intestate" with a stray space; no meaning is lost.
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. Part V does not apply to the property of a Hindu, Muhammadan, Buddhist, Sikh or Jaina (section 29), and Chapter II does not apply to Parsis (section 31).
Need help with sharing an estate among parents and siblings?
The shares in these sections turn on who is living and who has died, so the first step is a precise list of the family. If you want that list reviewed and the shares worked out, see our legal consultation page.
Key takeaways
- A living father succeeds to the property (section 42).
- With the father dead, the mother and each living brother or sister take equal shares (section 43).
- Children of a deceased brother or sister take only what their parent would have taken (sections 44 and 45).
- Half-blood brothers and sisters are counted (illustration to section 43).
- The widow's share is deducted first.
Read next
- Sections 46-49: mother, remoter kindred and advancements not brought into hotchpot
- Section 40: lineal descendants not all in the same degree
- Sections 36-39: distribution among children, grandchildren and remoter descendants
- Intestate succession under the Hindu Succession Act: Class I and Class II heirs
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.