Property Partition issue between brothers after father’s death

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September 01, 2020
By Advocate Chikirsha Mohanty



What is Inheritance

The term ‘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 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 a 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 ‘intestate succession’, the inheritance in such cases is governed by the personal inheritance laws applicable to the deceased person as per his/her religion.

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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 ‘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 ‘administrator’.

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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 I heirs

  • Class II heirs

  • Agnates

  • Cognates

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 1/5th of the father’s property.

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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 is 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 recognises 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 recognises 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.

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Legal Process of distribution

Before making a claim to 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 in 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 – 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 – 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.

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.

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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 involving 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 lead in the right direction. 



 

These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.


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