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How is the property divided if there is no Will
22-Feb-2023 (In Property Law)
Just I want to know that my father's one of property is still pending to transfer orally my father promise to transfer on my name but unfortunately my father expired now my mother is there but my 4 of elder brothers is demanding to divide equally in 5 brothers and my brothers they are financially strong. so can you please advise me accordingly.
Sir,
The property of a Hindu male dying intestate is distributed among his heirs in accordance with section 8 and 9 of The Hindu Succession Act, 1956. As per these the property of a Hindu dying intestate devolves upon his heirs of Class I who take the property to the exclusion of all other heirs. But what if there are more than one Class I heirs among whom the property of the deceased devolves? What rules are to be followed in such devolution. Section 10 of the Act lays down the rules to be followed in such cases. Section 10 provides as under:
Distribution of property among heirs in class I of the Schedule: The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:-
Rule 1.-The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share.
Rule 2.-The surviving sons and daughters and the mother of the intestate shall each take one share.
Rule 3.-The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.
Rule 4.-The distribution of the share referred to in Rule 3-
(i) among the heirs in the branch of the pre-decease son shall be so made that his widow (or widows together), and the surviving sons and daughters get equal portions ; and the branch of his pre-deceased sons gets the same portion;
(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.
Rule 1: The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share.
Suppose A, a Hindu, dying intestate at the time of his death is survived by two windows and a son. A was the owner of one house. Now as per the rule, heirs in Class I shall take the property simultaneously and to the exclusion of all others. And in the above case all are Class I heirs. But two of them are widows of A. Therefore, as per the provisions of Rule 1 of section 10, both the widows of A shall take one-half share in the house of A and the other half shall go to A’s son. Hence the property of A by virtue of the above rule would be divided in only two parts and not three as all the widows together are entitled to only one part by virtue of Rule 1 of section 10. However, among themselves, both the widows shall inherit equally and one-half of the portion of A’s house that they are entitled to shall be divided equally among them. Therefore share of A’s son in A’s house upon A’s death shall be one-half while the share of each widow of A shall be one-fourth.
Similarly if in the above example A is survived by three widows and three sons, the house of A upon A’s death shall be divided in four equal parts. Three parts, i.e. one part each shall be inherited by each son while the fourth part shall be inherited equally by the three widows.
However, if at the time of A’s death he is survived by only two widows, both of them shall inherit the house of A equally, i.e. both of them shall be entitled to one-half share, there being no other Class I heir.
Rule 2: The surviving sons and daughters and the mother of the intestate shall each take one share.
A, a Hindu male dies intestate and is survived by his mother, two widows, two sons and two daughters. Now reading both Rule 1 and Rule 2 together, it becomes clear that the property of A shall be divided in 6 parts. Each daughter shall inherit one part. So shall each son. There being two sons and two daughters surviving A, each shall inherit one part. Hence, four parts of the property shall be distributed among A‘s four sons and daughters. Of the remaining two parts, A’s mother alone shall be entitled to one part and by virtue of Rule 1, both the widows of A shall be together entitled to one part.
Rule 3: The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.
A, a Hindu male dying intestate, is survived by one widow, one son, one daughter and two grandsons from one predeceased son, i.e. a son who had already expired at the time of A’s death. Now A’s widow shall take one share of A’s property. One share each shall be taken by A’s surviving son and daughter. As far as A’s grandsons are concerned, by virtue of Rule 3, they shall together take one share as they are the heirs of A’s predeceased son. Therefore, A’s property on his death shall be divided in 4 parts. The one part inherited by A’s two grandsons from a predeceased son shall be divided equally among them. Here it may be mentioned that the position of the heirs of the deceased’s predeceased sons is similar to the deceased’s widows. Deceased’s widows, irrespective of their number are entitled to only one share in the property of the deceased. Similarly irrespective of the number of Class I heirs of a predeceased son of a deceased, they all together take one share. Here even if the widow of A’s predeceased son was alive, even then she would have inherited together with her two sons only one part of A’s property.
Rule 4 (i): The distribution of the share referred to in Rule 3-
(i) among the heirs in the branch of the pre-decease son shall be so made that his widow (or widows together), and the surviving sons and daughters get equal portions ; and the branch of his pre-deceased sons gets the same portion;
(ii) [Explained in next point]
Rule 4(i) deals with distribution of the share that the branch of a deceased’s predeceased son is entitled to on the deceased’s death. As mentioned above, the branch of the predeceased son of a male Hindu dying intestate gets one share in the deceased’s property. That one share is to be distributed among the heirs of that predeceased son in accordance with this Rule.
Thus if A’s predeceased son had two widows and two sons, then at the time of A’s death, they all together would have inherited just one part of A’s property. Among themselves however, the distribution of this one share shall be made in accordance with this rule. Hence the one part that they have inherited shall be divided in three equal parts – one part each to the two sons of A’s predeceased son and one part to the two widows of A’s predeceased son. Here if A’s predeceased son say B, had along with his two widows and two sons also got another son C who had already predeceased B and on his death was survived by one widow and one son, then the one part of A’s property that B’s branch inherits shall be divided into 4 parts – one part each to his two surviving sons, one part to his two widows and one part to the branch of his predeceased son C.
Rule 4(ii):
The distribution of the share referred to in Rule 3-
(i) [Explained in point above]
(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.
This rule deals with the distribution of the share of property of a Hindu male dying intestate that devolves under Rule 3 upon the branch of his predeceased daughter. Now as per Rule 4(ii), this distribution shall be so made that that the surviving sons and daughters of the predeceased daughter get equal portions. Therefore, if A, a Hindu male dying intestate is survived by a widow and a grandson and granddaughter from a predeceased daughter B, then A’s property upon his death shall be divided in two parts- one part to his widow and one part to B’s branch. The part inherited by B’s branch shall be divided equally between B‘s son and daughter.
nheritance In Absence Of A Will Under Indian Succession Act
Introduction
The Indian Succession Act came into operation on 30th September 1925 and it seeks to consolidate all Indian Laws relating to succession. It has no retrospective operation and is applicable to intestate and testamentary succession.
INTESTATE SUCCESSION
Intestate means when person dies without making a will, which is capable of taking effect. The property devolves upon the wife or husband or upon the relatives of the deceased in the following manner.
If A has left no will- He has died intestate in respect of the whole of his property.
A has left a will, whereby he has appointed B his executor; but the will contains no other provisions- A has died intestate in respect of the distribution of his property.
A has bequeathed his whole property for an illegal purpose - A has died intestate in respect of the distribution of his property.
When a will is partially incapable of being operative- A has bequeathed RS 1000 to B and RS 1000 to the eldest son of C, and has made no other bequest; and has died leaving the sum of Rs. 2000.00 and no other property. C died before A without having ever had a son. A has died intestate in respect of the distribution of Rs.1000.
Application
Hindus, Muslims, Buddhist, Sikh, Jana- This part does not apply to the property of any Hindu, Mohammedan, Buddhist, Sikh or Jaina. Muhammadans are governed by Mohammedan Law of Inheritance and the Hindus Buddhists, Sikhs and Jainas by the Hindu Succession Act, 1956.
Parsis- The following provisions do not apply to Parsis.
Special Marriage Act- Notwithstanding anything contained in the Indian Succession Act with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under the Special Marriage Act and to the property of the issue of such marriage shall be regulated by the provisions of the Indian Succession Act.
However if two persons who are Hindus get married under the Special Marriage Act the above provision does not apply and they are governed by the Hindu Succession Act.
Distribution of property
The property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules given below.
However a widow is not entitled to the provision hereby made for her if, by a valid contract made before her marriage, she has been excluded from her distributive share of her husband's estate.
Where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred.
Where the intestate has a widow-
if he has also left any lineal descendants, one third of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants, according to the rules here in after contained;
if he left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are of kindred to him, in the order and according to the rules here in after contained:
if he has left none who are of kindred to him, the whole of his property shall belong to his widow.
Lineal descendants mean descendant born in lawful wedlock only.
Where intestate has left no widow, and where he has left no kindred.
Where the intestate has left no widow, his property shall go to his lineal descendants or to those who are of kindred to him, not being lineal descendants, according to the rules hereinafter contained; and, if he has left none who are of kindred to him, it shall go to the Government.
Rights of widower.
A husband surviving his wife has the same rights in respect in respect of her property, if she dies intestate, as a widow has in respect of her husband's property, if he dies intestate.
Rules of Distribution (Children, Grandchildren Etc. )
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 are as follows.
( Lineal descendants mean descendant born in lawful wedlock only. )
Where intestate has left child or children only.
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.
Child or children- The word "child" does not include an illegitimate child, but must be one born out of lawful wedlock. The words "any child" mean and include "children" as well.
Where intestate has left no child, but grandchild or 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.
Where intestate has left only great-grandchildren or remoter lineal 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.
Where intestate leaves lineal descendants not all in same degree of kindred to him, and those through whom the more remote are descended are dead.
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.
One of such shares shall be allotted to each of the lineal descendants who stood in the nearest degree of kindred to the intestate at his decease; and one of such shares shall be allotted in respect of each of such deceased lineal descendants; and the share allotted in respect of each of such deceased lineal descendants shall belong to his surviving child or children or more remote lineal descendants, as the case may be; such surviving child or children or more remote lineal descendants always taking the share which his or their parent or parents would have been entitled to respectively if such parent or parents had survived the intestate
Rules of Distribution (No lineal descendants)
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 as follows.
Where intestate's father living.
If the intestate's father is living, he shall succeed to the property.
Where intestate's father dead, but his mother, brothers and sisters living.
If the intestate's father is dead, but the intestate's mother is living, and if any brother or sister and the child or children of any brother or sister who may have died in the intestate's lifetime are also living, then the mother and each living brother or sister, shall be 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.
Where intestate's father dead and his mother and children of any deceased brother or sister living.
If the intestate's father is dead, but the intestate's 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 shall be 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.
Where intestate's father dead, but his mother living and no brother, sister, nephew or niece.
If the intestate's father is dead, but the intestate's mother is living, and there is neither brother, nor sister, nor child of any brother or sister of the intestate, the property shall belong to the mother.
Where intestate has left neither lineal descendant, nor father, nor mother.
Where the intestate has left neither lineal descendants, nor father, nor mother, the property shall be divided equally between his brothers and sisters and the child or children of such of them as may have died before him, 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.
Where intestate has left neither lineal descendant, nor parent, nor brother, nor sister.
Where the intestate has left neither lineal descendants, nor parent, nor brother, nor sister, his property shall be divided equally among those of his relatives who are in the nearest degree of kindred to him.
What happens when there is no will :
Insensitive as it may sound, financial matters crop up very soon after the demise of a loved one. And, if by any chance the person died intestate, that is without making a will, it could become complicated. If a person dies intestate, then the assets are distributed as per the succession laws of the religion the person belongs to. But if there is more than one heir, distribution of assets can lead to bitter battles, given that some assets are more lucrative than others, especially when you take into account the tax implication.
During the course of a lifetime, individuals acquire all kinds of big and small assets that need to be passed on to the rightful new owners. Says Anju Gandhi, partner, SN Gupta and Co., a law firm, “Today an average middle class couple in their 60s will have a portfolio consisting of at least one house and possibly a second house or a farmhouse as well, a car, some jewellery, gold and other artefacts. Apart from this, they may also have investments in mutual funds, fixed deposits and the proceeds from the insurance policy which could amount anything between Rs1 crore and Rs5 crore.”
Who can stake a claim?
All your class one legal heirs have equal rights to your assets. In case of Hindus, class one legal heirs include your mother, spouse and children. If any of your children has died, then their children and spouse have an equal share.If you have no class one legal heir, then your class two legal heirs can stake a claim. Class two heirs include your father, siblings, living children’s grandchildren and sibling’s children, among others.
Consolidating assets : Usually, if a will exists, then at least there is record or list of all the assets the person owns. If not, the difficulties begin with consolidating assets. “Consolidating the assets is by far the most important and difficult step,” says Gandhi. “How do you know what are the assets of the deceased, especially if he has been managing everything on his own? People don’t always reveal everything in their Form 16 or when they file income-tax returns.” How to track the assets. “Those who hold sizeable assets tend to at least record them for their own convenience even if they don’t make a succession plan. But then there are others who are negligent or plain careless. If you look in the most obvious places such as their office drawer or files at home where they maintain the papers, or talk to their lawyer, consult the Form 16 or income-tax returns receipt, you are more or less likely to be able to consolidate all their assets.” Consolidating the assets is just the first step. Once you have a list of assets, the next step is to approach each institution to get the funds or assets released. You will have to follow different procedures for movable and immovable assets.
Movable assets : These include bank deposits, mutual funds and other investments, such as post office schemes, made with financial institutions.
At the time of investment, almost all of these require the investor to fill up a nominee name. If the nominations are in place, then, in all likelihood, banks and financial institutions will release the funds, irrespective of the amount, to the nominee mentioned.
But remember that a nominee is only a trustee of the funds, which he is expected to safeguard till such time as the legal heir or beneficiary can be determined and the proceeds can be passed on to him. This means that although the banks or financial institutes release the money to a nominee, other legal heirs can stake claim.
Kumar adds, “This (nominee) is something the financial institutes have in place for their convenience. They don’t want to get involved in a dispute, and hence usually while releasing funds to the nominee, they get an undertaking signed from him.”
Even if there is no nominee and the amount is fairly small, banks will release the funds up to a limit, provided the person withdrawing the money signs an indemnity stating that he is in possession of the money and will be held responsible for payments in case a more authentic claimant appears. These limits vary from bank to bank, according to their internal policy. “The Reserve Bank of India has issued guidelines for banks asking them to determine their internal policy and thus arrive at a threshold to release funds,” says Gandhi.
If, however, the funds are in excess of this limit and there is no nominee, then the banks will ask the person staking a claim to produce a succession certificate. “If there is a nominee, then banks will release the funds to him after doing the prescribed documentation. However, if they have any doubts, suspect fraud or anticipate any dissent, they may ask you to produce a succession certificate,” says Gandhi.
A succession certificate establishes who the legal heirs of the deceased are and gives them the authority to inherit debts, securities and any other assets. The beneficiaries can file a petition for a succession certificate in a district or high court as the two have concurrent jurisdiction. The petition usually mentions the relation of the petitioner with the deceased, details of other surviving legal heirs, the time, date and place of death of the deceased and the fact that the deceased died intestate. The court, after examining the petition, issues a notice to all the respondents. It also issues notice in a newspaper and specifies a time frame (usually one and a half months) within which anyone who has objections may raise them. If no one contests the notice and the court is satisfied then it passes an order to issue a succession certificate to the petitioner. “If there are more than one petitioners, then the court may jointly grant them a certificate, but it will not grant more than one certificate for a single asset,” Kumar adds.
Once the assets are released, they can be handed over or transferred to the beneficiary. “Usually the nominee for each asset if different and they are more or less fairly distributed so families settle these matters verbally among themselves. However if any of the heirs is dissatisfied and takes the matter to the court, then the assets are distributed by the court as per the succession laws applicable to the deceased’s assets, according to the state and religion.” says Gandhi.
Immovable assets : In case of an immovable property that is not disputed, only the title of ownership has to be changed. This can be done at the relevant district authority under whose jurisdiction the property falls.
For instance, says Kumar, “If it’s an agricultural land, then it will go to the revenue department concerned and if it’s an apartment in Delhi, it will go to the Delhi Development Authority.”
To get the holding transferred in you name, you would require a series of documents, such as a formal application and an affidavit, the death certificates of the deceased and any other deceased class one legal heir, relinquishment deeds from legal heirs who are willing to concede their share, indemnity bond and undertaking and anything else that may be demanded.
But if the matter goes to the court, the court will first ask the beneficiaries to determine if the property can be divided physically. For instance, if you own a three-storey house and have three children, then each son can be given one storey although the value of each floor will not be the same. For instance, the first floor may be expensive than the ground floor. The price of the entire property is, thus, evaluated and the cost of each individual share is valued and they are asked to pay each other the difference. If this is not possible, then one heir can buy out the share of the other. For instance, if you die leaving one house and two legal heirs, then the physical division of a single apartment is not possible. In this case, one heir can buy out the share of the other. This is called right of pre-emption.
Another solution is that the heirs sell off their shares to an outsider but there is a problem. Says Kumar: “If it is a Hindu undivided family, then the outsider cannot claim possession of his share till the time when the property is physically divided or liquidated. For instance, if out of three brothers, one sells his share to an outsider, then it is transferred to his (the outsider’s) name but he (the outsider) cannot use it, till such time when the property is somehow physically divided or sold off.”
The final resort is to liquidate the asset and divide the proceeds between the legal heirs. “These proceeds are again divided as per the succession laws applicable to the deceased’s estate. Besides, the court charges a fixed proportion of the estate as fee. So it is in the interest of the beneficiaries to reach an amicable solution among themselves as much as they can and take to court only those assets that they just can’t divide on their own,” says Gandhi.
The upper limit of the court fee is usually fixed. For instance, in case of the Bombay high court it is Rs75,000. Apart from this, you will have to bear the lawyer’s fees and the costs of various transactions. The entire process can take about six months to obtain simple uncontested certificates and permission. Besides, various intermediaries eat into the value of the estate.
You would never want that the assets you carefully built over a lifetime for your loved ones become the bone of contention among them after your death. Writing a will and having nominations in place may solve this and various other problems for your heirs.
The property of a Hindu male dying intestate is distributed among his heirs in accordance with section 8 and 9 of The Hindu Succession Act, 1956. As per these the property of a Hindu dying intestate devolves upon his heirs of Class I who take the property to the exclusion of all other heirs. But what if there are more than one Class I heirs among whom the property of the deceased devolves? What rules are to be followed in such devolution. Section 10 of the Act lays down the rules to be followed in such cases. Section 10 provides as under:
Distribution of property among heirs in class I of the Schedule: The property of an intestate shall be divided among the heirs in class I of the Schedule in accordance with the following rules:-
Rule 1.-The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share.
Rule 2.-The surviving sons and daughters and the mother of the intestate shall each take one share.
Rule 3.-The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.
Rule 4.-The distribution of the share referred to in Rule 3-
(i) among the heirs in the branch of the pre-decease son shall be so made that his widow (or widows together), and the surviving sons and daughters get equal portions ; and the branch of his pre-deceased sons gets the same portion;
(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.
Rule 1: The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share.
Suppose A, a Hindu, dying intestate at the time of his death is survived by two windows and a son. A was the owner of one house. Now as per the rule, heirs in Class I shall take the property simultaneously and to the exclusion of all others. And in the above case all are Class I heirs. But two of them are widows of A. Therefore, as per the provisions of Rule 1 of section 10, both the widows of A shall take one-half share in the house of A and the other half shall go to A’s son. Hence the property of A by virtue of the above rule would be divided in only two parts and not three as all the widows together are entitled to only one part by virtue of Rule 1 of section 10. However, among themselves, both the widows shall inherit equally and one-half of the portion of A’s house that they are entitled to shall be divided equally among them. Therefore share of A’s son in A’s house upon A’s death shall be one-half while the share of each widow of A shall be one-fourth.
Similarly if in the above example A is survived by three widows and three sons, the house of A upon A’s death shall be divided in four equal parts. Three parts, i.e. one part each shall be inherited by each son while the fourth part shall be inherited equally by the three widows.
However, if at the time of A’s death he is survived by only two widows, both of them shall inherit the house of A equally, i.e. both of them shall be entitled to one-half share, there being no other Class I heir.
Rule 2: The surviving sons and daughters and the mother of the intestate shall each take one share.
A, a Hindu male dies intestate and is survived by his mother, two widows, two sons and two daughters. Now reading both Rule 1 and Rule 2 together, it becomes clear that the property of A shall be divided in 6 parts. Each daughter shall inherit one part. So shall each son. There being two sons and two daughters surviving A, each shall inherit one part. Hence, four parts of the property shall be distributed among A‘s four sons and daughters. Of the remaining two parts, A’s mother alone shall be entitled to one part and by virtue of Rule 1, both the widows of A shall be together entitled to one part.
Rule 3: The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.
A, a Hindu male dying intestate, is survived by one widow, one son, one daughter and two grandsons from one predeceased son, i.e. a son who had already expired at the time of A’s death. Now A’s widow shall take one share of A’s property. One share each shall be taken by A’s surviving son and daughter. As far as A’s grandsons are concerned, by virtue of Rule 3, they shall together take one share as they are the heirs of A’s predeceased son. Therefore, A’s property on his death shall be divided in 4 parts. The one part inherited by A’s two grandsons from a predeceased son shall be divided equally among them. Here it may be mentioned that the position of the heirs of the deceased’s predeceased sons is similar to the deceased’s widows. Deceased’s widows, irrespective of their number are entitled to only one share in the property of the deceased. Similarly irrespective of the number of Class I heirs of a predeceased son of a deceased, they all together take one share. Here even if the widow of A’s predeceased son was alive, even then she would have inherited together with her two sons only one part of A’s property.
Rule 4 (i): The distribution of the share referred to in Rule 3-
(i) among the heirs in the branch of the pre-decease son shall be so made that his widow (or widows together), and the surviving sons and daughters get equal portions ; and the branch of his pre-deceased sons gets the same portion;
(ii) [Explained in next point]
Rule 4(i) deals with distribution of the share that the branch of a deceased’s predeceased son is entitled to on the deceased’s death. As mentioned above, the branch of the predeceased son of a male Hindu dying intestate gets one share in the deceased’s property. That one share is to be distributed among the heirs of that predeceased son in accordance with this Rule.
Thus if A’s predeceased son had two widows and two sons, then at the time of A’s death, they all together would have inherited just one part of A’s property. Among themselves however, the distribution of this one share shall be made in accordance with this rule. Hence the one part that they have inherited shall be divided in three equal parts – one part each to the two sons of A’s predeceased son and one part to the two widows of A’s predeceased son. Here if A’s predeceased son say B, had along with his two widows and two sons also got another son C who had already predeceased B and on his death was survived by one widow and one son, then the one part of A’s property that B’s branch inherits shall be divided into 4 parts – one part each to his two surviving sons, one part to his two widows and one part to the branch of his predeceased son C.
Rule 4(ii):
The distribution of the share referred to in Rule 3-
(i) [Explained in point above]
(ii) among the heirs in the branch of the pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.
This rule deals with the distribution of the share of property of a Hindu male dying intestate that devolves under Rule 3 upon the branch of his predeceased daughter. Now as per Rule 4(ii), this distribution shall be so made that that the surviving sons and daughters of the predeceased daughter get equal portions. Therefore, if A, a Hindu male dying intestate is survived by a widow and a grandson and granddaughter from a predeceased daughter B, then A’s property upon his death shall be divided in two parts- one part to his widow and one part to B’s branch. The part inherited by B’s branch shall be divided equally between B‘s son and daughter.
nheritance In Absence Of A Will Under Indian Succession Act
Introduction
The Indian Succession Act came into operation on 30th September 1925 and it seeks to consolidate all Indian Laws relating to succession. It has no retrospective operation and is applicable to intestate and testamentary succession.
INTESTATE SUCCESSION
Intestate means when person dies without making a will, which is capable of taking effect. The property devolves upon the wife or husband or upon the relatives of the deceased in the following manner.
If A has left no will- He has died intestate in respect of the whole of his property.
A has left a will, whereby he has appointed B his executor; but the will contains no other provisions- A has died intestate in respect of the distribution of his property.
A has bequeathed his whole property for an illegal purpose - A has died intestate in respect of the distribution of his property.
When a will is partially incapable of being operative- A has bequeathed RS 1000 to B and RS 1000 to the eldest son of C, and has made no other bequest; and has died leaving the sum of Rs. 2000.00 and no other property. C died before A without having ever had a son. A has died intestate in respect of the distribution of Rs.1000.
Application
Hindus, Muslims, Buddhist, Sikh, Jana- This part does not apply to the property of any Hindu, Mohammedan, Buddhist, Sikh or Jaina. Muhammadans are governed by Mohammedan Law of Inheritance and the Hindus Buddhists, Sikhs and Jainas by the Hindu Succession Act, 1956.
Parsis- The following provisions do not apply to Parsis.
Special Marriage Act- Notwithstanding anything contained in the Indian Succession Act with respect to its application to members of certain communities, succession to the property of any person whose marriage is solemnized under the Special Marriage Act and to the property of the issue of such marriage shall be regulated by the provisions of the Indian Succession Act.
However if two persons who are Hindus get married under the Special Marriage Act the above provision does not apply and they are governed by the Hindu Succession Act.
Distribution of property
The property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules given below.
However a widow is not entitled to the provision hereby made for her if, by a valid contract made before her marriage, she has been excluded from her distributive share of her husband's estate.
Where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred.
Where the intestate has a widow-
if he has also left any lineal descendants, one third of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants, according to the rules here in after contained;
if he left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are of kindred to him, in the order and according to the rules here in after contained:
if he has left none who are of kindred to him, the whole of his property shall belong to his widow.
Lineal descendants mean descendant born in lawful wedlock only.
Where intestate has left no widow, and where he has left no kindred.
Where the intestate has left no widow, his property shall go to his lineal descendants or to those who are of kindred to him, not being lineal descendants, according to the rules hereinafter contained; and, if he has left none who are of kindred to him, it shall go to the Government.
Rights of widower.
A husband surviving his wife has the same rights in respect in respect of her property, if she dies intestate, as a widow has in respect of her husband's property, if he dies intestate.
Rules of Distribution (Children, Grandchildren Etc. )
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 are as follows.
( Lineal descendants mean descendant born in lawful wedlock only. )
Where intestate has left child or children only.
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.
Child or children- The word "child" does not include an illegitimate child, but must be one born out of lawful wedlock. The words "any child" mean and include "children" as well.
Where intestate has left no child, but grandchild or 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.
Where intestate has left only great-grandchildren or remoter lineal 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.
Where intestate leaves lineal descendants not all in same degree of kindred to him, and those through whom the more remote are descended are dead.
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.
One of such shares shall be allotted to each of the lineal descendants who stood in the nearest degree of kindred to the intestate at his decease; and one of such shares shall be allotted in respect of each of such deceased lineal descendants; and the share allotted in respect of each of such deceased lineal descendants shall belong to his surviving child or children or more remote lineal descendants, as the case may be; such surviving child or children or more remote lineal descendants always taking the share which his or their parent or parents would have been entitled to respectively if such parent or parents had survived the intestate
Rules of Distribution (No lineal descendants)
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 as follows.
Where intestate's father living.
If the intestate's father is living, he shall succeed to the property.
Where intestate's father dead, but his mother, brothers and sisters living.
If the intestate's father is dead, but the intestate's mother is living, and if any brother or sister and the child or children of any brother or sister who may have died in the intestate's lifetime are also living, then the mother and each living brother or sister, shall be 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.
Where intestate's father dead and his mother and children of any deceased brother or sister living.
If the intestate's father is dead, but the intestate's 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 shall be 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.
Where intestate's father dead, but his mother living and no brother, sister, nephew or niece.
If the intestate's father is dead, but the intestate's mother is living, and there is neither brother, nor sister, nor child of any brother or sister of the intestate, the property shall belong to the mother.
Where intestate has left neither lineal descendant, nor father, nor mother.
Where the intestate has left neither lineal descendants, nor father, nor mother, the property shall be divided equally between his brothers and sisters and the child or children of such of them as may have died before him, 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.
Where intestate has left neither lineal descendant, nor parent, nor brother, nor sister.
Where the intestate has left neither lineal descendants, nor parent, nor brother, nor sister, his property shall be divided equally among those of his relatives who are in the nearest degree of kindred to him.
What happens when there is no will :
Insensitive as it may sound, financial matters crop up very soon after the demise of a loved one. And, if by any chance the person died intestate, that is without making a will, it could become complicated. If a person dies intestate, then the assets are distributed as per the succession laws of the religion the person belongs to. But if there is more than one heir, distribution of assets can lead to bitter battles, given that some assets are more lucrative than others, especially when you take into account the tax implication.
During the course of a lifetime, individuals acquire all kinds of big and small assets that need to be passed on to the rightful new owners. Says Anju Gandhi, partner, SN Gupta and Co., a law firm, “Today an average middle class couple in their 60s will have a portfolio consisting of at least one house and possibly a second house or a farmhouse as well, a car, some jewellery, gold and other artefacts. Apart from this, they may also have investments in mutual funds, fixed deposits and the proceeds from the insurance policy which could amount anything between Rs1 crore and Rs5 crore.”
Who can stake a claim?
All your class one legal heirs have equal rights to your assets. In case of Hindus, class one legal heirs include your mother, spouse and children. If any of your children has died, then their children and spouse have an equal share.If you have no class one legal heir, then your class two legal heirs can stake a claim. Class two heirs include your father, siblings, living children’s grandchildren and sibling’s children, among others.
Consolidating assets : Usually, if a will exists, then at least there is record or list of all the assets the person owns. If not, the difficulties begin with consolidating assets. “Consolidating the assets is by far the most important and difficult step,” says Gandhi. “How do you know what are the assets of the deceased, especially if he has been managing everything on his own? People don’t always reveal everything in their Form 16 or when they file income-tax returns.” How to track the assets. “Those who hold sizeable assets tend to at least record them for their own convenience even if they don’t make a succession plan. But then there are others who are negligent or plain careless. If you look in the most obvious places such as their office drawer or files at home where they maintain the papers, or talk to their lawyer, consult the Form 16 or income-tax returns receipt, you are more or less likely to be able to consolidate all their assets.” Consolidating the assets is just the first step. Once you have a list of assets, the next step is to approach each institution to get the funds or assets released. You will have to follow different procedures for movable and immovable assets.
Movable assets : These include bank deposits, mutual funds and other investments, such as post office schemes, made with financial institutions.
At the time of investment, almost all of these require the investor to fill up a nominee name. If the nominations are in place, then, in all likelihood, banks and financial institutions will release the funds, irrespective of the amount, to the nominee mentioned.
But remember that a nominee is only a trustee of the funds, which he is expected to safeguard till such time as the legal heir or beneficiary can be determined and the proceeds can be passed on to him. This means that although the banks or financial institutes release the money to a nominee, other legal heirs can stake claim.
Kumar adds, “This (nominee) is something the financial institutes have in place for their convenience. They don’t want to get involved in a dispute, and hence usually while releasing funds to the nominee, they get an undertaking signed from him.”
Even if there is no nominee and the amount is fairly small, banks will release the funds up to a limit, provided the person withdrawing the money signs an indemnity stating that he is in possession of the money and will be held responsible for payments in case a more authentic claimant appears. These limits vary from bank to bank, according to their internal policy. “The Reserve Bank of India has issued guidelines for banks asking them to determine their internal policy and thus arrive at a threshold to release funds,” says Gandhi.
If, however, the funds are in excess of this limit and there is no nominee, then the banks will ask the person staking a claim to produce a succession certificate. “If there is a nominee, then banks will release the funds to him after doing the prescribed documentation. However, if they have any doubts, suspect fraud or anticipate any dissent, they may ask you to produce a succession certificate,” says Gandhi.
A succession certificate establishes who the legal heirs of the deceased are and gives them the authority to inherit debts, securities and any other assets. The beneficiaries can file a petition for a succession certificate in a district or high court as the two have concurrent jurisdiction. The petition usually mentions the relation of the petitioner with the deceased, details of other surviving legal heirs, the time, date and place of death of the deceased and the fact that the deceased died intestate. The court, after examining the petition, issues a notice to all the respondents. It also issues notice in a newspaper and specifies a time frame (usually one and a half months) within which anyone who has objections may raise them. If no one contests the notice and the court is satisfied then it passes an order to issue a succession certificate to the petitioner. “If there are more than one petitioners, then the court may jointly grant them a certificate, but it will not grant more than one certificate for a single asset,” Kumar adds.
Once the assets are released, they can be handed over or transferred to the beneficiary. “Usually the nominee for each asset if different and they are more or less fairly distributed so families settle these matters verbally among themselves. However if any of the heirs is dissatisfied and takes the matter to the court, then the assets are distributed by the court as per the succession laws applicable to the deceased’s assets, according to the state and religion.” says Gandhi.
Immovable assets : In case of an immovable property that is not disputed, only the title of ownership has to be changed. This can be done at the relevant district authority under whose jurisdiction the property falls.
For instance, says Kumar, “If it’s an agricultural land, then it will go to the revenue department concerned and if it’s an apartment in Delhi, it will go to the Delhi Development Authority.”
To get the holding transferred in you name, you would require a series of documents, such as a formal application and an affidavit, the death certificates of the deceased and any other deceased class one legal heir, relinquishment deeds from legal heirs who are willing to concede their share, indemnity bond and undertaking and anything else that may be demanded.
But if the matter goes to the court, the court will first ask the beneficiaries to determine if the property can be divided physically. For instance, if you own a three-storey house and have three children, then each son can be given one storey although the value of each floor will not be the same. For instance, the first floor may be expensive than the ground floor. The price of the entire property is, thus, evaluated and the cost of each individual share is valued and they are asked to pay each other the difference. If this is not possible, then one heir can buy out the share of the other. For instance, if you die leaving one house and two legal heirs, then the physical division of a single apartment is not possible. In this case, one heir can buy out the share of the other. This is called right of pre-emption.
Another solution is that the heirs sell off their shares to an outsider but there is a problem. Says Kumar: “If it is a Hindu undivided family, then the outsider cannot claim possession of his share till the time when the property is physically divided or liquidated. For instance, if out of three brothers, one sells his share to an outsider, then it is transferred to his (the outsider’s) name but he (the outsider) cannot use it, till such time when the property is somehow physically divided or sold off.”
The final resort is to liquidate the asset and divide the proceeds between the legal heirs. “These proceeds are again divided as per the succession laws applicable to the deceased’s estate. Besides, the court charges a fixed proportion of the estate as fee. So it is in the interest of the beneficiaries to reach an amicable solution among themselves as much as they can and take to court only those assets that they just can’t divide on their own,” says Gandhi.
The upper limit of the court fee is usually fixed. For instance, in case of the Bombay high court it is Rs75,000. Apart from this, you will have to bear the lawyer’s fees and the costs of various transactions. The entire process can take about six months to obtain simple uncontested certificates and permission. Besides, various intermediaries eat into the value of the estate.
You would never want that the assets you carefully built over a lifetime for your loved ones become the bone of contention among them after your death. Writing a will and having nominations in place may solve this and various other problems for your heirs.
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Adv. Srinivasa Kudva
Bangalore | 100+ Answers
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