Under Rule 1 of Section 12 of the Hindu Succession Act, 1956, preference is given to the heir:

Rule 1 of s. 12 of the Hindu Succession Act, 1956 states: "Of two heirs, the one who has fewer or no degrees of ascent is preferred." Fewer degrees of descent is the tie-breaker under Rule 2, used only where ascent is equal, and age is not a ground of preference.