Property Partition issue between brothers after father’s death

Property conflicts are becoming more prevalent and are a major cause of conflict in families. Family ties may be strained by these arguments, which have negative psychological and legal effects. Such disagreements frequently result from one party's greed, as they desire an excessive share of the property while ignoring the requirements and rights of other siblings. The problem is made worse by ignorance or misunderstanding of inheritance rights. Joint family living is common in India, however, actual property ownership can cause disputes, especially when there is a lack of formal documentation. Such conflicts can be difficult to settle since they require lengthy legal processes and, occasionally, outside assistance. Laws governing inheritance and succession can be complex and require thorough understanding.
 

Types of property

Ancestral Property According to hereditary laws, ancestral property is passed down through generations within families, where family members inherit particular shares. It includes a variety of assets, such as real estate, enterprises, investments, and personal property. This has to be divided equally among the family members, and every member has a birthright over this property.

Self-Acquired Property Self-Acquired Contrarily, property is anything that is personally gained throughout a person's lifetime, such as a home that was bought completely, a business that was started by the owner, or an outside inheritance. Control remains with the owner, and the owner's will determines who inherits what. The flexibility of this property allows for flexible wealth transfers via trusts and estate planning. This is not necessary to be transferred to the family members, only in the case if there is no will, it will be transferred to the family members.
 

What is Inheritance

The term & lsquo Inheritance', in common parlance, is understood as the passing on of the assets and property of a deceased person to his/her living relatives upon his/her death. The process of inheritance in India is governed by two distinct processes. The first is through a will and the second as per the personal laws to which the parties associate.

The process of inheritance under a Will is governed by the provisions of the Indian Succession Act, 1925 which is secular legislation governing all cases where a person dies leaving behind a Will, irrespective of the religion of the deceased person. On the other hand, if a person dies without executing a will, also known as & lsquo intestate succession, the inheritance in such cases is governed by the personal inheritance laws applicable to the deceased person as per his/her religion.

Inheritance under a Will

A Will or testament is a legal declaration of a person expressing his intention with respect to his property and assets, to be carried out upon his death. Thus, a Will is essentially a legal document containing the names of one or more persons who are to manage his/her estate and provide for the transfer of his/her property upon his/her death. If a father leaves behind a Will, his property will be distributed according to his intention recorded in such Will amongst his children and/or any other person named therein. The deceased person who leaves behind a Will is referred to as the & lsquo testator' and the person named by the testator to carry out the terms of the Will is called the executor'. However, when a court appoints a person to carry out the terms of a will, such person is referred to as an & lsquo administrator'.
 

Inheritance according to personal law

In the event where there is no Will or equivalent document declaring the deceased person's intent, inheritance in India and the manner in which property of a deceased person is to be distributed is determined by the law of Succession.
 

Under Hindu law

The Hindu personal law of inheritance is governed by the Hindu Succession Act, 1956 and as per section 2, the Act applies to any person who is Hindu by religion or any of its forms including Buddhists, Jains, and Sikhs. Section 8 of the Act, which provides the rules of succession upon the death of a Hindu male, divides the relatives of the deceased male into different classes and provides the rules of succession. These classes are namely:

• Class 1 heirs- Widow, Son, Daughter, Intestate's mother, and the intestate's children who have already passed away, including their widows, sons, and daughters

• Class 2 heirs (if no one is present in class 1)- Father, Grandparents, Grandchildren, Brother, Sister, Other relatives

• Class 3 Agnates (if no one is present in class 2)- These individuals are the deceased's male biological relatives. This would include- the son of a brother, the daughter of a brother, the son of a son, etc.

• Class 4 Cognates (if agnates are present)- These are the deceased's female biological relatives. This would include- the son of a sister, the daughter of a sister, etc.

Further, Section 9 goes on to provide the order of succession among the heirs as identified in different classes under Section 8 above. The Act also provides for a list of all heirs as per the classes in its Schedules. As per the above provisions, the property of a Hindu male dying intestate devolves upon his Class I heirs, who take the property to the exclusion of all other heirs. Secondly, if there are no Class I heirs, then it devolves upon the Class II heirs exclusively. Thirdly, if there are no Class I & Class II heirs, then to the Agnates and similarly, if there are not even any Agnates then the property devolves upon the Cognates. For example, if the father dies leaving behind his wife and four sons (all Class I heirs as per the act), then each will inherit equal shares of his property, i.e. each will get 1/5^th of the father's property.
In the case where a Hindu male passes away, the following shall take place

1. Equal shares go to the Class I heirs.

2. If there are no Class I heirs, it will be distributed evenly among Class II heirs.

3. The property will be distributed amongst the Agnates and then the Cognates if there are no Class I or Class II Heirs.

4. The property will pass to the government, a process known as escheat, if none of the aforementioned heirs are alive.

In case a Hindu Female passes away the property shall be divided amongst

1. Her spouse and children come first.

2. Then heir's of her husband

3. Then her parents

4. Then heir of her father

5. Then the heir of her mother
    

What Happens When a Coparcener of a Hindu Undivided Family Dies?

According to the Hindu Succession Act, of 1956, every male member of the Hindu Undivided family descended from the same lineage is considered a coparcener, according to the Hindu Succession Act of 1956.

Coparceners' Succession Rules: There is no immediate need for a settlement of successions when coparceners of a Hindu Undivided Family, excluding the Karta or family head, pass away under Hindu inheritance laws in India unless other coparceners make such a request.

Rights of the Wife in Ancestral Property: The Act states that the wife of a deceased coparcener has no rights about ancestral or joint family property. The deceased's sons and daughters, however, are treated equally.

Rights in Self-Acquired Property: In contrast, the Act states that the wife, son, and daughter are entitled to all assets if the deceased did not leave specific instructions in their will on their ownership.
 

Under Muslim Law

The Muslim law of succession is derived from four distinct sources, namely the Holy Quran, The Sunna (Practice of the Prophet), the Ijma (consensus of the learned men of the community on the decision to be arrived at on any issues), and lastly, the Qiya (analogical deduction of what is right and just as per principles laid down by god).

The detailed rules of succession for each heir in varying circumstances are derived from an amalgamation of the knowledge derived from the above sources. There is no concept of ancestral property or rights by birth in Muslim law. Islam recognizes that persons may leave behind a Will, but a Will (unless ratified by all the heirs of the person leaving behind the Will) is valid only to the extent of one-third of the deceased's property. Insofar as it is valid, it is governed by the regular laws applicable to wills in India.

• A Muslim wife cannot be dispossessed.

• Even though she has to share with other wives if there is more than one wife.

• The widow gets a definite share.

• Mohammedan Law gives the male heirs, the sons, twice the share of the daughters

The Muslim law recognizes two types of heirs, namely the Sharers and the Residuaries. Sharers are the heirs entitled to a certain share of the property of the deceased, whereas Residuaries only obtain a share if there is any left over after the Sharers have received their share.
 

Understanding Christian Laws of Inheritance

Christian inheritance in India is governed under Sections 31 to 49 of the Indian Succession Act, 1925, which states that if they don't have any children, the husband or wife of a deceased person is eligible for half of the estate. The entitlement is one-third if there are children. The Act also states that-

• If there are no children, relatives, or other legal heirs, widows and widowers are entitled to the whole estate of the deceased.

• If the spouse is alive, the children of a deceased person receive two-thirds of the estate.

• In the absence of the spouse, the entire decedent's property will be divided among the decedent's children.
   

Understanding the Laws of Inheritance for Parsis

The Parsi Succession has been defined under Sections 50 to 56 of the Indian Succession Act, 1925, which states that-

• The spouse of the deceased and the children will get equal shares. The parents of a deceased child, however, are entitled to half of each child's entitlement.

• If a son dies before receiving his inheritance, the widow and children receive it.

• If a daughter has already passed away, her children will receive her inheritance.
   

Legal Process of Distribution

Before claiming any property left by the deceased, it should be made sure that there are no debts outstanding. All the heirs would have to first agree to chalk out a strategy to clear the debt. In case, the property is to be distributed among brothers according to the Will left by their father, it is important to make sure there are no ambiguities in the Will and legal advice must be sought while arriving at any kind of settlement. Lack of clarity in the Will can lead to serious legal complications at a later stage, which can be avoided by working in the right direction at the beginning itself. If there is no Will , then a property can be distributed by way of partition deed or family settlement.

Suit of Partition & ndash A suit of partition can be filed by any or all brothers with respect to the property. A partition deed for a property is executed among different people, usually family members. Family Settlement procedure & ndash A family settlement is an agreement where family members mutually work out how a property should get distributed among themselves. All the parties should be related to each other and have a claim to a share of the disputed property. A family settlement is a conciliation process where a third person, usually a lawyer or a senior family member, helps the family arrive at a mutually acceptable solution to the property dispute.

Why do you need a lawyer?

A property matter on its own is a lengthy procedure to be involved in, let alone when the case involves property amongst family members. For any legal advice or procedure regarding property matters, a competent property lawyer must be approached. A property lawyer having years of experience in dealing with cases like these can formulate the right strategies that can help you get a desirable judgment and can also ensure that you are led in the right direction. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert property lawyers.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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