Property Partition issue between brothers after father’s death

हिंदी में पढ़ें
June 24, 2019
By Advocate Chikirsha Mohanty



Inheritance in India is governed by two process – 1. By Will 2. Personal laws
 

Inheritance under a Will

A will or testament is a legal declaration expressing the wishes of a person, containing the names of one or more persons who are to manage his estate and provide for the transfer of his property at death.
If a father (testator) leaves behind a Will, the property will be distributed among the brothers according to it. An executor is appointed by the testator, as distinguished from an administrator who is appointed by the court.

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Inheritance according to personal law

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

Under Hindu law

Section 8 and 9 of the Hindu Succession Act, 1956 governs the distribution of the property after the death of the Hindu male. 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. And if there are no Class 1 then to Class 2 Heirs.

For example, if the father dies leaving behind his wife and four sons, 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

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
     

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 ambiguity 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.

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Suit of Partition – A suit of partition can be filed by any or all brothers w.r.t 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.



 

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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User Reviews


4.8 - 22 reviews
A
LawRatoLawRatoLawRatoLawRato

please share more details on women property rights.

Aarti on Nov 05, 2019
S
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Very well written. Please share more info on daughter rights. Thanks.

Swati on Nov 15, 2019
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Father died without will. How to divide property?

Rupesh on Nov 02, 2019
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Need a lawyer for my family property case. Where to call?

Abhinav on Nov 24, 2019
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Very informative. Got all answers regarding my property case.

Gurpreet on Nov 25, 2019
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nicely written. Great work

Deepak on Oct 27, 2019
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good article. Can you give some more detail on the issue.

Richa on Dec 08, 2019
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good article and easy to understand

Pratibha on Dec 05, 2019
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Nice piece on the subject.

Ashok on Oct 31, 2019
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thanks for the information

Karthik on Oct 28, 2019
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very informative. Can you tell more about this

Sudhakar on Dec 02, 2019
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Ajit on Nov 28, 2019
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great legal advice

Vidya on Nov 20, 2019
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nice article. Thanks for the information

Subhash on Nov 19, 2019
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needed some more information on the subject.

Lakshmi on Oct 25, 2019
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Raman on Nov 27, 2019
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Helped a lot in understanding the law.

Sunitha on Dec 07, 2019
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informative with the law.

Shilpi on Nov 22, 2019
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thanks for the info. How can we contact a lawyer?

Mahesh on Nov 08, 2019
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whom to contact for any legal query?

Preeti on Nov 29, 2019
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Written in a very simple language.

Neelam on Nov 25, 2019
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A well written article.

Vinay on Nov 03, 2019

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