Ancestral Property Partition and Family Rights

Numerous portrayals of family disputes over a property in movies and novels have proved only one point that ever since the beginning of time a property has been a mark of high economic status due to which it has been a matter for dispute amongst kin. Property disputes among families are a common occurrence in India these days. Legal disputes over property take place across people at different levels in society, be it households with low income or wealthy families and most of these disputes relate to ancestral property.
 

What is an Ancestral Property?

Ancestral property is a property inherited up to three generations in a Hindu Undivided Family (HUF). In other words, it is a property that descends from the father, grandfather, and great grandfather. Before 2005, only male members of the family had a right to inherit the ancestral property, however, the 2005 amendment to the Hindu Succession Act gave equal inheritance rights to women as well.
 

What is the procedure for partition of an Ancestral Property?

Partition of ancestral property is when two or more members of a family claiming rights over the property want to gain ownership of their share in the property separately. The partition of property amongst family members can then take place which may be either contested (without mutual consent) by filing a partition suit or uncontested through partition deed or family settlement . In case the partition is contested, the family members can file a partition suit. A suit for partition is essentially filed when all the legal heirs are not in agreement in respect of the terms and conditions of the division of property. In this case, a legal notice for partition can also be set. Whereas, if the division of property is being done with mutual agreement, one can enter into a partition deed or a family settlement. The members of a family having the right over a particular property can execute a partition deed to distribute a jointly owned property among the co-owners. A family settlement can also be executed by the co-owners of the joint family property where the intention is to divide the property amongst the co-owners mutually, without any legal dispute.
 

Laws governing ancestral properties

India is a democratic nation and hence the property division varies from religion to religion. Sikhs, Jains, Buddhists, and Hindus are supposed to divide their property among themselves according to the provisions of the Hindu Succession Act, of 1956. Christians have to adhere to the Indian Succession Act, of 1925, Men and women are treated equally under Christian succession and inheritance laws. Furthermore, regardless of how it was gained, their property is regarded as their own, and no one else is allowed to contest it while they are alive. The provisions of the Muslim Personal Law (Shariat) Application Act, 1937 are applicable to Muslims. There are two categories of heirs recognised by Islamic law: sharers, who are entitled to a portion of the deceased's property, and residuary, who inherit the portion of the property that remains after the sharers have claimed their share.
 

According to the Hindu Succession act the categories of heirs are divided into two classes

Class I heirs include-

Class I of the Schedule specifies guidelines for how property is divided among heirs. The names of the individuals involved are: son, daughter, widow, mother son of a pre-deceased son daughter of a pre-deceased son widow of a pre-deceased son son of a pre-deceased son of a pre-deceased son daughter of a pre-deceased son of a pre-deceased son widow of a pre-deceased son of a pre-deceased son Son of a dying daughter of a dying daughter daughter of a dying daughter of a dying daughter daughter of a dying son of a dying daughter daughter of a dying daughter of a dying son. The guidelines are- Rule 1.- The widow of interstate shall take one share, if there is more than one widow then all of them will get one share only. Rule 2.- The surviving mother, son and daughter of the intestate will each get one share Rule 3.- the heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate one share each Rule 4.-The distribution of the share mentioned in Rule 3:

1. The division of heirs within the pre-deceased son's branch will be made so that the surviving sons and daughters and his widow (or widows combined) receive equal shares, and the branch of his pre-deceased sons will receive an equal share.

2. the division of heirs within the pre-deceased daughter's branch will be made so that the surviving sons and daughters receive equal shares.

Class II heirs include:

The property of an intestate shall be split among the heirs listed in each entry in class II of the Schedule in the order that they share equally. This is the rule governing the distribution of property among heirs in that class. In this the individuals involved are: The father, the son's daughter, the son's daughter, the brother, the sister, the daughter's son, the daughter's son, the brother's daughter, the sister's daughter, the father's father, the father's mother, the father's widow, the brother's sister, the mother's father, the mother's mother, the brother's sister, and the brother's son.
 

Who can sell an ancestral property?

Hindu law grants the head of a Hindu undivided family (HUF) the authority to manage the family's assets, however ancestral property cannot be sold by one owner or by a group of owners alone because four generations are entitled to the property. The sale of an undivided ancestral property will require the approval of all parties involved. Daughters are among the coparceners who are eligible to request the sale and division of the family estate. A legal notification demanding your rights may be submitted to the offending party in the event that a shareholder is denied his portion of the property or in the event that one member intends to sell the property without first discussing the other members.
 

How many generations can claim ancestral property?

The four male lineages are entitled to an undivided ancestral property. An undivided ancestral property is essentially inherited by the father, grandfather, great-grandfather, and great-great-grandfather. Accordingly, the sons of X, Y, Z, and Z's son A are entitled to inherit property that is X's ancestors. In addition, legal heirs of a person's paternal ancestors up to three generations above him who inherit property will receive equal rights as coparceners in that property. As a result, three generations below Z would be entitled to receive a property that he inherited from his father.
 

What is an undivided property?

Let us assume that A has B, C2, and D as his three sons. The property would have become divided and could not have become ancestral property if A had chosen to divide it equally among the three sons. All of the laws pertaining to ancestral properties will be nullified if that occurs. In the March 2, 2016, case of Uttam versus Saubhag Singh & Others, the Supreme Court decided that when different individuals have succeeded to a joint family property under Section 8 of the Hindu Succession Act, 1956, the property is no longer considered a joint family property because they own it as tenants in common rather than as joint tenants. In simple words, a property cannot be divided up among the four generations in order for it to remain ancestral. Once a family arrangement or partition deed has been used to split ancestral property, it no longer qualifies as ancestral property once it is put into force. Put another way, in a joint Hindu family, property becomes self-acquired in the hands of the family member who receives it when there is a division or partition.
 

Do gifted properties qualify as ancestral?

Ancestral properties do not include assets obtained through the execution of a will or through a gift deed. It should be noted that a father may transfer this self-acquired property to a third party throughout his lifetime by means of a gift deed. After the donor passes away, property ownership is passed via a will.
 

Father's self-acquired property given to children by will/gift retains its status unless stated otherwise

The land will remain as self-acquired property and will not become ancestral property until specifically specified in the deed, the Supreme Court rules, even if a father leaves his self-acquired property to his children through a gift deed or a bequest.
 

Start of right in an ancestral property

When it comes to ancestral properties, a stakeholder's right begins at birth. In other inheritance arrangements, such will inheritance, the right becomes operative upon the owner's passing. Thus, in the case given above, Shyam's claim to his ancestral property will begin to exist at the moment of his birth rather than at the passing of his father Ram.
 

Share of each generation in ancestral property

Each generation's share is first calculated, and then that share is further divided into the shares of succeeding generations. It is to be noted that as more family members join the group, each member's portion of his ancestral property decreases with time. This implies that eventually, your interest in the property may become very little.
 

Extent of claim over ancestral property

An ancestral property will be subject to a prior claim by the preceding generation. This implies that the claim of the succeeding generations will be a subset of what remains after the property is distributed among the previous generation's stakeholders. In other words, rather than being determined per population, the rights of the parties involved in an ancestral property are determined per stripe. Let us assume there is X and he has two brothers,the ancestral property of X's two brothers will be split into three shares initially. Then, each brother's part might be distributed among their children, and so on.
 

Women's right in ancestral property

Women were not considered coparceners and hence did not have a right on their ancestral property following marriage until the Hindu Succession Act, 1956, was amended. The previous restrictions essentially prevented women from being coparcenarians. Following the Hindu Succession (Amendment) Act of 2005, women are now recognised as coparceners, a change to the succession law. Sons and daughters now have equal rights and responsibilities over the family's property as coparceners. Even after getting married, a daughter is still considered a coparcener of her shares. The Supreme Court added a condition that both the father and the daughter had to be living on September 9, 2005, for this clause to take effect, even though it said that a daughter has the same rights over the ancestral property as the sons. Regardless of the father's status on this date, the Supreme Court decided in 2018 that a daughter can inherit her deceased father's belongings. Nevertheless, possessions inherited from one's mother's side are not considered ancestral.
 

Women's right in ancestral agricultural land

Although the 2005 gave daughters equal ownership rights over family property, this law is frequently disregarded when allocating agricultural land in India. This is mainly because, although the Hindu Succession Act is essentially a national legislation, land in India is a state subject. Agricultural land is divided in many Indian states based on state-specific regulations that do not recognise daughters as equal heirs to familial property.
 

Rights of Daughters or Granddaughters in Father's or Grandfather's Ancestral Property

The dependability of women for finance over the years, be it on father, brother, or husband, has been at the root of much hardship for women. This is why the amendment to the Hindu Succession Act in the year 2005 was made to bring the daughters at par with sons with regard to property inheritance rights. Under Hindu law, the property is divided into ancestral and self-acquired property. Ancestral property is defined as one that is inherited by up to four generations of male lineage and should have stayed undivided throughout this period. Whereas, self-acquired property refers to a property that has been bought by the father with his own money. In the case of an inherited property, an equal share accrues by birth itself, be it a daughter or a granddaughter. Thus, the father or the grandfather cannot Will such property to anyone he wants to, or deprive a daughter or a granddaughter of her share in it. However, in the case of self-acquired property, the father has a right to gift the property or will it to anyone he wants, and the daughter will not have a right to raise an objection.
 

Daughters don't lose right in parent's property because they got dowry: Bombay High Court

The Goa Bench of the Bombay High Court has decided that a daughter's entitlement to her father's property does not vanish just because a dowry was provided at the time of their marriage. & quot The daughters nonetheless retain all rights to the family's assets even in the event that it is presumed that they received a dowry. The daughters' rights could not have been terminated in the way that the brothers attempted to do after the father's passing, the Bench stated in issuing an order in a situation where a brother transferred property without the sister's permission.
 

Ancestral Property- Rights to Married Daughters

Before the 2005 amendment, once a daughter was married, she ceased to be a part of her father's Hindu Undivided Family (HUF). However, the amendment stated that every daughter, whether married or unmarried, is considered a member of her father's HUF and can even be appointed as & lsquo Karta' of the HUF, thus, granting daughters equal rights , duties, and liabilities in matters related to inheritance as were earlier limited to sons.
 

Family property received by Hindu woman through partition deed is not inheritance: HC

An ancestral property received by a Hindu woman through a registered partition deed cannot be termed inheritance under the Hindu Succession Act, the Karnataka High Court has ruled. Consequently, such a property will not go back to the heirs of the woman's father upon her demise, the HC added.
 

Wife's Rights to inherit Husband's Ancestral Property

As per Hindu law, a Hindu wife does not have inheritance rights in her husband's ancestral property. However, a wife can have her husband's share in the ancestral property after his death. This is when the husband has died before the partition of his ancestral property has taken place. Moreover, in case a husband dies after taking his share of the ancestral property, such property will be divided between the wife or wives and the children of the deceased equally.
 

Daughter-in-Law's Rights in Father-in-Law's Property

As stated above, a wife only has legal rights to inherit the property owned or inherited by her husband and not the ancestral property of her husband. Therefore, a daughter-in-law does not have any inheritance rights in the property bought or inherited by her father-in-law.
 

Son-in-law's right in property of his father-in-law

A son-in-law has no right in the property of the father-in-law as he is not considered part of family member. According to a recent ruling by the Kerala High Court, a son-in-law will have no right in a property belonging to his father-in-law, even if he has given money for the construction work of the said property. The court said that “ When the father-in-law is in possession of the property, the son-in-law cannot plead that he had been adopted as a member of the family, subsequent to the marriage with his daughter and has right in the property. Residence of the son-in-law is permissive in nature. (The) son-in-law cannot have any legal right to his father-in-law's property and building, even if he has spent an amount on the construction of the building,” the HC said while giving its verdict in the.
 

Rights of a Son in the Ancestral Property

A right to inherit the ancestral property accrues to a son by the time of his birth. A son is the joint owner of ancestral property and has the right to file a partition suit for his rightful share in the property. He has a right to ask for his share in the ancestral property during the lifetime of his father or grandfather or great grandfather, whoever is the & lsquo Karta'. He also has the right to sell his share to any third person before a formal partition of the property has taken place.
 

Children born in live-in relationships have right to ancestral property

After the judgement of June 2022, children born out of a live-in relationship are entitled to their share of their father's ancestral property. It is well established that there will be an assumption in favour of marriage if a man and a woman cohabitate as husband and wife for a significant amount of time. One could make such an assumption in accordance with Section 114 of the Evidence Act.The supreme courts have decided that when a man and a woman have lived together regularly for a number of years, the law presumes marriage and forbids concubinage.
 

Do illegitimate children have right in ancestral property?

The Supreme Court held in the instances of Bharatha Matha & others v R Vijaya Renganathan & others and Jinia Keotin versus Kumar Sitaram that children born out of void marriages were not entitled to inherit the ancestral coparcenary property. Only the property that their parents had independently obtained was eligible for their claim. Though, the Supreme Court began considering the question in July 2023 of whether children born within a void or voidable marriage have coparcenary rights over the assets of a Hindu Undivided Family.
 

Adopted child stops being coparcener of birth family: Telangana High Court and Karnataka High Court

The Telangana High Court has decided that an adopted child forfeits any title or interest in the family's ancestral property when they cease to be a coparcener of their original family. The high court stated in an order dated June 27, 2023, that the adopted person could only take the property with them to their new family if a partition had occurred prior to the adoption and the adopted person had been given the property. The bench held that one can only bring property to the adoptive family with corresponding obligations if a partition has occurred prior to the adoption and the property is assigned to his share or self-acquired, obtained by will, inherited from his natural father or other ancestors, or collateral that is not coparcenary property held alongside other coparceners. The Karnataka High Court on 14th July, 2023 has also given a similiar order where it held that The adoptee's rights to joint family property lapse if he was a member at the time of adoption unless he acquired such possessions through partition. It has been noted that upon adoption, the adoptee is placed in a household where he is granted the same rights as a son who was born into the world. Consequently, the adoption of the adopted kid results in the termination of all rights with the original family. It was unequivocally declared that he forfeits his right of succession with regard to the ancestral estates.
 

Exclusion from ancestral property

In 2016, the Delhi High Court decided that an adult son had no legal claim on his parents' self-acquired property. One is free to draught a will and exclude one's kids (sons as well as daughters) from inheriting their self-acquired property.

Father can cut son off from his self-acquired property

The High Court stated that a son, married or single, has no legal right to live in the house and can live there only at the mercy of his parents up to the time the parents allow, where the house is a self-acquired house of the parents.

Father can't cut son off from ancestral property

It is not within the power of a father to deny his son access to his inherited possessions. But in November 2018, the Delhi High Court decided that parents who harass their children can take them out of any kind of property. The HC's ruling regarding the nature of property would not serve as a deterrent for evicting children and legal heirs who mistreat their elderly parents. Following an amendment in 2017 brought about by the Delhi Maintenance and Welfare of Parents and Senior Citizens (Amendment) Rules, which eliminated the term & quot self-acquired,& quot elders are now able to request the removal of their sons, daughters, and legal heirs from any type of property, whether it be immovable or not, ancestral or self-acquired, tangible or intangible.
 

Grandchildren can't claim right to grandfather's self-acquired property if father relinquishes right: SC

In January 2023, the Supreme Court ruled that if a grandparent's father has already given up ownership of self-acquired property for cash, the grandchild cannot inherit a portion of it. An SC Bench held that the principle of estoppel will apply to a son's sons and successors once the son gives up his claim to his father's self-acquired property in exchange for money. The Madras High Court also decided in 2015 that if their father had received the self-acquired property in a family partition in his capacity as a legal heir rather than a coparcener under the Hindu Succession Act, the grandchildren would not be able to claim a share in it.
 

Inheritance under Muslim law

There are major four souces of Muslim Law of Succession-

1. The Holy Quran

2. The Sunna - that is, the practice of the Prophet

3. The Ijma - that is, the consensus of the learned men of the community on what should be the decision on a particular point

4. The Qiya - that is, an analogical deduction of what is right and just in

accordance with the good principles laid down by God. Sharers and Residuaries are the two categories of heirs recognised by Islamic law. Residuaries would inherit the portion of the estate that remains after the sharers have claimed their share. Sharers are the people who are entitled to a specific portion of the deceased's property.
 

Sharers

Twelve people have a share in the estate of the deceased according to Islamic inheritance law: the husband, wife, daughter, son's daughter, father, paternal grandfather, mother, male line grandmother, full sister, consanguine sister, uterine sister, and uterine brother. Each sharer's share is contingent upon certain requirements. In the event that a woman has no lineal descendants, she is entitled to 1/4 of the inheritance in other cases, she receives 1/8. If a husband inherits from his wife, he receives a quarter in the event that there are no lineal descendants and half otherwise. One daughter gets half, while several daughters split the remaining two-thirds. If there are daughters and boys, the daughters become residuaries and the sons get twice as much.
 

Non-Testamentary and Testamentary succession under Muslim law

The Muslim Personal Law (Shariat) Application Act, 1937 is applicable in non-testamentary succession. Conversely, in the event that an individual passes away testate, meaning that they made a will before to passing away, their inheritance is subject to the applicable Muslim Shariat Law, which applies to both Sunnis and Shias. In situations where the property in question is real estate located in West Bengal, Chennai, or Bombay, the Indian Succession Act, 1925, will apply and bind the Muslims. This exclusion is limited to testamentary succession considerations.
 

Birthright

According to Muslim law, a person's property can only be inherited after their death a child born into a Muslim family is not entitled to property at birth. If an heir survives the ancestor's passing, he becomes a legitimate heir and is thereby qualified for a portion of the assets. But if the presumed heir does not his ancestor survive, he will not be eligible for an inheritance or a portion of the property will be present.
 

Distribution of the Property

Property may be distributed either per strip or per capita in accordance with Muslim law. The Sunni legal system mostly employs the per capita distribution approach. The heirs share equally in the inheritance left by their forebears when using this technique. As a result, the number of heirs determines each person's portion. The Shia legislation recognises the distribution mechanism per strip. This kind of property inheritance divides the property among the heirs in accordance with the strip to which each belongs. As a result, the branch and the number of members of the branch determine how much of their inheritance they receive.
 

Rights of females

There is no difference made by Muslims between the rights of men and women. Nothing can stop a boy or girl child from inheriting property legally upon the death of their ancestor. But typically speaking, it's discovered that the female heir's quantum of share is half that of a male heir's. The cause for this is that, in accordance with Islamic law, a woman will receive more support from her spouse, while men will only receive the assets inherited from their ancestors. Men also have a responsibility to keep their spouses and kids.
 

Widow's right to succession

No widow is barred from the succession under Muslim law. A Muslim widow without children is entitled to one-fourth of her husband's estate after paying his debts and burial and legal costs. Nonetheless, an inherited widow is entitled to one-eighth of her late husband's estate if she had children or grandchildren. In the event that a Muslim man marries while ill and then passes away from that illness without making a full recovery or finishing the marriage, his widow is not entitled to inherit anything. However, in the event that her sick spouse files for divorce and then passes away from that condition, the widow will be entitled to a portion of the estate until she remarries.
 

A Child in the Womb

As long as the unborn kid is born alive, it can inherit while still inside its mother's womb. Since an embryonic child is thought of as a living being, ownership of the property passes to them right away. However, the portion already vested in such a child in the womb is divested if the child is not born alive, and it is assumed that there was no such heir (in the pregnancy) at all.
 

Escheat

If a Muslim dies without a legitimate heir according to Islamic law, his assets are acquired by the government through the escheat procedure
 

Marriage under the Special Marriage Act, 1954

For inheritance reasons, a Muslim who marries under the Special Marriage Act of 1954 no longer qualifies as a Muslim. Because of this, a Muslim's assets do not pass down according to Islamic law upon their death. The Indian Succession Act, 1925 governs the inheritance of properties belonging to these Muslims, and Muslim law does not apply in this case.
 

Basic Principles Of The Christian Law Of Succession

The Concept Of Succession

Before getting an understanding of Christan Law, understanding succession is important. Succession is the process by which a deceased person's property passes to his heirs. This property can be self-acquired or inherited, and it can take place in two ways-

1. Testamentary Succession, which occurs when a deceased person leaves a will designating particular heirs to receive their property

2. Intestate succession occurs when a deceased person dies without leaving a will and the laws regulating his or her religion take over to decide how the estate is distributed.

The Indian Succession Act, 1925

The deceased's religious affiliation determines the inheritance laws in India. Christians generally adhere to the Indian Succession Act of 1925, whereas Hindus are controlled by the Hindu Succession Act, 1956. A native of India with pure Asian ancestry who sincerely confesses Christianity is called a & quot Indian Christian& quot . A Hindu who converts to Christianity is no longer subject to Hindu law and waives any responsibilities under it, as the case of Abraham v. Abraham made clear. If they so want, they are free to keep abiding by Hindu law. When the first Indian Succession Act was enacted in 1865, it created the controversy over whether or not converts may continue to be subject to the previous legal system. According to the decision in Kamawati v. Digbijoy, succession and inheritance issues are no longer covered by the previous legal system. Hindus who convert to Christianity must only abide by the succession laws that govern Christians, such as the Indian Succession Act of 1925, according to a 2001 ruling by the Allahabad High Court. Courts disagree on whether or not to apply joint family norms to individuals who convert from Hinduism. In the Francis v. Gabri case, the Bombay High Court ruled that a family's coparcenary rights do not change when they convert to Christianity. On the other hand, the Madras High Court held in the Francis v. Tellis case that a person's conversion from Hinduism results in the conversion of coparcenary rights into individual rights. According to the doctrine of survivorship, this implies that the surviving brother in a coparcenary may not get the whole estate of the converted brother.
 

Intestate Succession Among Indian Christians

According to Section 30 of the Indian Succession Act, 1925, a person is considered to have died intestate with regard to any property for which he has not made a testamentary disposition that is enforceable. In the event that the owner is an Indian Christian, any property that has not yet been bequeathed or distributed in accordance with the law will, upon his death, pass according to the guidelines outlined in Chapter II of the Act. At this point, it would be important to clarify that intestacy can be either total or partial. If the deceased does not successfully dispose of any beneficial interest in any of his property by will, there is a total intestacy. When a deceased person leaves part of their beneficial interest in their property in their will but not all of it, this is known as partial intestacy.
 

Domicile

The deceased's domicile is a crucial factor in deciding how his property will be devolved. & quot A person's domicile is that country in which he either has or is deemed by law to have his permanent home,& quot according to Halsbury's definition. S. 5 of the Act clearly stipulates that the deceased's movable property will pass according to the lex loci of the place where he lived at the time of his death, while his immovable property will pass according to Indian law (lex loci rei sital), regardless of the place of his residence at the time of his death. S. 6 clarifies this clause further by saying that a person may only have one residence for the purposes of inheriting his movable goods. It is important to remember that nationality and domicile are not the same thing. Nationality refers to a person's initial allegiance, whereas domicile deals with their current place of living. S. 15 states that the wife automatically inherits her husband's home upon and during the continuation of their marriage.
 

Kindred Or Consanguinity

& quot Kindred and consanguinity& quot is defined in Section 24 of the Indian Succession Act as the relationship or connection of individuals descended from a common ancestor. The term & quot lineal consanguinity,& quot which describes people who are related to one another or have a shared ancestor, is defined in detail in Section 25. Either & quot per stirpes& quot (division based on branches when degrees of relationship differ) or & quot per capita& quot (equal portions when heirs are of the same degree of relationship) can be used for succession. For Christians, & quot per stirpes& quot distribution results from claiming through a relative who shares the same degree as the deceased's closest kindred. & quot Collateral consanguinity& quot is defined in Section 26 as ties, such as those between brothers, that are descended from a common ancestor but are not related directly. Christians' legal system does not distinguish between relationships based on paternity or matrimony. Christian law accords equal treatment to the deceased's maternal and paternal relatives, granting them the right to prosperity and equitable distribution amongst themselves. Christian succession laws do not distinguish between full-blood, half-blood, or uterine relatives. As long as the child was still in the womb when the parent died, posthumous children are regarded as having been born alive and present when the parent died. Christian law emphasises lawful marriages above polygamous unions and does not recognise children born out of wedlock. Christian law recognises adoption, and although if it may not say so explicitly, an adopted kid has the same rights as a child born of birth. According to Section 32 of the Indian Succession Act, an intestate person's property passes to their spouse or family in a specific order and in accordance with the guidelines outlined in the Act. In Christian tradition, the heirs recognised are the married couple, kin, and lineal descendants.
 

Rights Of The Widow And Widower

The Act's Sections 33, 33-A, and 34 control the widow's succession. Together, they provide that in the event that the decedent leaves behind both widow and lineal descendants, the widow will get one-third of his inheritance, with the remaining two-thirds going to the lineal descendants. Half of the estate goes to the widow and the other half to the kindred if no lineal offspring remain but other relatives are still alive. Furthermore, his widow will get the entire estate if neither of his kindreds remain. If the intestate leaves a widow but no lineal offspring and his property's net worth is less than five thousand rupees, the widow shall receive the entire estate however, Indian Christians are exempt from this rule. The rights of the deceased's widower are outlined in S. 35. It simply states that, should he predecease her (intestate), he will have the same rights over her property as she would.
 

Rights Of Children And Other Lineal Descendants

The lineal descendants will inherit two-thirds of the inheritance if the widow is still living if not, they will inherit the entire amount. If they have an equal degree of relationship to the deceased, per capita (equal division of shares) applies. This is in accordance with Act Sections 36& ndash 40. Crucially, case law has established that a Christian's heirs will inherit his property as tenants-in-common rather than as joint tenants. Furthermore, there will be no estoppel about succession based on the heirs' religion. After his death, even the Hindu father of a kid who became a Christian was considered able to inherit from him. In accordance with S. 48, an intestate's property will be equally distributed among his relatives who are closest in degree to him if he leaves no sibling, parent, or lineal descendant. The Government may use the doctrine of escheat to take possession of the deceased's inheritance if there are no heirs at all, in which case it will return to the State.
 

Testamentary Succession Among Indian Christians

A person's wishes that they only want to come into force upon their death are expressed in their will. A testator needs to intend for the intentions they consciously express to come into effect only after they pass away in order for their will to be considered legitimate. This is known as testamentary intention. Part VI of the Indian Succession Act, 1925 addresses testamentary succession. Every adult of sound mind who is not a minor may dispose of their property in accordance with S. 59. The explanations in this Section clearly clarify that married women and those who are deaf, stupid, or blind and who are not consequently incapable of making a will have the right to dispose of their property by will, so broadening the scope of testamentary disposition of estate. The procedure also stipulates that a person must be in good mental health and be free from any illnesses or intoxications that may impair their ability to think clearly. Part VI of the Act consists of 134 Sections, ranging from S. 57 to S. 191, which cover every aspect of wills and codicils, including their validity and enforcement. These sections cover topics such as the ability to make a will, the requirements for wills, bequests that can be made, and more.
 

Intestate Succession among Parsis

The provisions outlined in Part V, Chapter III of the Act govern the administration of the Parsi intestate and specify how the estate is divided among the deceased's legitimate heirs. The intestate succession of Parsis is covered in Sections 51 to 56. The general guidelines for Parsi intestate succession are: If a predeceased child of the intestate leaves no widow, widower, kid, or children, nor any widow of any lineal descendant of such predeceased child, then there is no share for a lineal descendant of the intestate who passed away before the intestate. The predeceased child of the intestate will have their part of the estate distributed if any of the aforementioned relatives are still alive. The Act's section 53 makes reference to this. Additionally, section 53(b) of the Act states that if the deceased child was a daughter, the widower will not receive any share instead, the children of the deceased daughter would receive their mother's part, which must be divided equally among them. Also, a daughter's share won't be taken into account at all if she has no lineal descendants. Any widow or widower of an intestate relative who remarries during the intestate's lifetime will not be entitled to a portion. However, there is a caveat to this rule: the intestate's mother or paternal grandmother will also be entitled to a share of the estate if they remarry while the intestate is still alive.
 

How can a lawyer help you in the family partition?

Sometimes the law and the legal framework can get confusing and difficult to understand, especially when the issue is regarding a dispute related to family property. In such a scenario, one may not realize how to determine the legal issue, the area to which the issue relates, whether the issue requires going to court, and, how the court procedure works. Seeing a lawyer and getting some legal advice can enable you to comprehend your choices and can give you the certainty to enable you to determine your legal recourse. An experienced attorney can give you expert advice on how to handle your property issue owing to his years of experience in handling such cases. A property lawyer is an expert on the laws and can help you avoid significant mistakes that may cause financial harm or will require future legal proceedings to correct. You can also use LawRato's Free Legal Advice service to get free advice on your case from expert property lawyers. Thus, by hiring an attorney you can ensure avoid delay and can get your share in the property as quickly as possible.

Advocate Chikirsha Mohanty

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

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