Sections 36-39 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 36 to 39 begin the sub-heading "Distribution where there are lineal descendants". They say how an intestate's property is shared among children when children survive, among grandchildren when they do not, and among still remoter descendants in the same way. The case where the descendants are not all of one degree is in section 40 and has its own article.
The property left after deducting the widow's share, if there is a widow, is distributed among lineal descendants by the rules in sections 37 to 40 (section 36). If only children survive, they take equally, or the property belongs to the one child (section 37). If no child but grandchildren survive, the grandchildren take equally (section 38). The same rule runs down to great-grandchildren and more remote descendants, those nearest in degree taking (section 39).
Section 36: the rules and the widow's share
As per the text of the Act consulted, the rules for the distribution of the intestate's property (after deducting the widow's share, if he has left a widow) amongst his lineal descendants shall be those contained in sections 37 to 40. So the widow's share is taken out first (one-third in section 33(a)), and the rest is divided under these sections. For the widow's share, see our article on sections 31 to 35.
If your family has more than one generation of descendants alive or dead, a legal consultation can help you place each person in the right degree before you divide.
Section 37: only children
Where the intestate has left surviving him a child or children, but no more remote lineal descendant through a deceased child, the property shall belong to his surviving child, if there is only one, or shall be equally divided among all his surviving children. The words "no more remote lineal descendant through a deceased child" matter: if a child has died leaving children of his own, this section is not the one that applies; section 40 covers that.
Section 38: no child, but grandchildren
Where the intestate has not left surviving him any child, but has left a grandchild or grandchildren and no more remote descendant through a deceased grandchild, the property shall belong to his surviving grandchild if there is only one, or shall be equally divided among all his surviving grandchildren.
The Act's illustrations to section 38
- (i) A has three children and no more: John, Mary and Henry. They all die before the father, John leaving two children, Mary three and Henry four. Afterwards A dies intestate, leaving those nine grandchildren and no descendant of any deceased grandchild. Each of the grandchildren will have one-ninth.
- (ii) But if Henry has died leaving no child, then the whole is equally divided between the intestate's five grandchildren, the children of John and Mary.
The point of illustration (i) is that grandchildren take per head among themselves: nine grandchildren, one-ninth each, whatever the size of their parents' families. This is the rule when they are all in the same degree, as section 38 requires.
Section 39: great-grandchildren and remoter descendants
In like manner the property shall go to the surviving lineal descendants who are nearest in degree to the intestate, where they are all in the degree of great-grandchildren to him, or are all in a more remote degree.
The reasoning repeats: take the nearest generation that has any survivor, and if all survivors are in that one degree, divide equally among them. How degrees are counted is explained in sections 25 and 26; see our article on sections 23 to 28.
The three rules at a glance
| Who survives | Who takes | Section |
|---|---|---|
| One child, no remoter descendant through a deceased child | That child | 37 |
| Several children, no remoter descendant through a deceased child | All equally | 37 |
| No child; grandchildren only | Grandchildren equally | 38 |
| Only great-grandchildren, or all in a still more remote degree | Those nearest in degree, equally | 39 |
A fresh example
Usha Kapoor, an invented person, dies intestate leaving no widow, no child, and four grandchildren born to two of her late children (three to one, one to the other). Section 38 applies because she has left no child but has left grandchildren and no more remote descendant through a deceased grandchild. The four grandchildren divide the property equally, one-fourth each, in the same way as illustration (i) divides among nine. If instead one of her children had survived with grandchildren of a deceased child, section 40 would be the section to read, and a separate article explains it.
Where the text is silent
- Sections 36 to 39 do not say what happens when descendants are of different degrees; section 40 does.
- They do not mention adopted children or any distinction between sons and daughters; the text refers to "child" and "children".
- Child in the womb at the death is dealt with in section 27(c) and in the illustration to section 40; see the article on section 40.
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 that has several generations of heirs?
Counting heirs by degree is simple once the family tree is drawn properly. For a review of the tree and the shares that follow from it, see our legal consultation page.
Key takeaways
- The widow's share, if any, is deducted first; the rest goes to lineal descendants by sections 37 to 40.
- Surviving children take equally, or the one child takes the whole.
- If no child survives, grandchildren take equally, and so on down the generations.
- Nine grandchildren from three deceased children each take one-ninth (illustration (i) to section 38).
- Descendants of different degrees are dealt with in section 40.
Read next
- Section 40: lineal descendants not all in the same degree
- Sections 31-35: share of widow, widower, lineal descendants and kindred
- Sections 41-45: intestate without lineal 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.