There are a lot of property disputes between siblings these days. It has become a bone of contention among family members to resolve property matters. In order to gain the maximum share of the property, each sibling ignores the needs of the others. There are many factors contributing to disputes, such as greed and lack of understanding of property inheritance laws.
- An inheritance is a financial term describing the assets passed down to individuals after someone dies.
- There are two distinct inheritance processes in India. First, through a will, and second, as per their personal laws.
- If there are no outstanding debts against a deceased person, their property can be claimed.
- In any case that involves property matters, it is necessary to consult with a competent property dispute lawyer for legal advice and guidance.
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What is Inheritance?
In basic terms, inheritance refers to passing on a deceased person’s assets to his/her living relatives upon his/her death. In India, inheritance is divided into two distinct processes. First, there is a Will, and second, there are the personal laws applicable to the parties after death.
- Inheritance under a Will is governed by the Indian Succession Act, 1925, which is secular legislation that governs all cases where a person dies leaving behind a Will, regardless of their religious belief.
- In contrast, inheritance is governed by the personal inheritance laws applicable to the deceased person as per his/her religion if a person dies without executing a Will, also known as intestate succession.
Inheritance under a Will
- A Will or testament is a written statement of a person’s intentions regarding the disposition of his/her property and assets after his/her death. Thus, a Will is basically a legal document that specifies who will manage the estate of a deceased person and to whom the property will transfer after death.
- If a father leaves behind a Will, his property will be divided among his children and/or anyone else he names in the Will.
- An individual who leaves behind a Will is known as a ‘testator’, and the person whom he or she names to execute the Will is known as an ‘executor’. However, when a court appoints an individual to carry out a Will, that individual is known as an administrator.
Inheritance according to personal law
- If there is no Will or equivalent document expressing a deceased person’s intentions, inheritance in India and how the property of a deceased person is to be distributed are determined by the law of Succession.
(1) How is inheritance dealt with under Hindu Personal Laws?
As per section 2 of the Hindu Succession Act, 1956, the Hindu personal law of inheritance applies to anyone who is Hindu by religion or any of its forms, including Buddhists, Jains, or Sikhs.
According to Section 8 of the Act, which specifies the rules of succession upon the death of a Hindu male, the relatives of the deceased male are divided into different classes. The following classes are included in this list:
- Class I heirs
- Class II heirs
|Class I Heirs
|Mother of the intestate
|The heirs of pre-deceased children of the intestate (which shall include the widow, sons, and daughters of the predeceased children as well)
|Class II Heirs
|These are the blood relations to the deceased through males. For example, the bother’s son, brother’s daughter, son’s son, etc.
|These are the blood relations to the deceased through females. For example, sister’s son, sister’s daughter, daughter’s son, etc.
Further, Section 9 provides the order of succession among the heirs as identified in different classes under Section 8 above. As part of its Schedule, the Act lists all heirs according to their classes.
- According to these provisions, the property of a Hindu male who dies intestate passes to his Class I heirs, excluding all other heirs.
- Second, in the absence of Class I heirs, it falls exclusively on the Class II heirs.
- Finally, if there are no Class I or Class II heirs, then the property goes to the Agnates, and similarly, if there are no Agnates, then it goes to the Cognates.
For example, if a father died and left behind his wife and four sons (all Class I heirs as per the Act), then each would inherit 1/5th of his property.
(2) How is inheritance dealt with under Muslim Personal Laws?
Muslims have derived the Islamic succession law from four distinct sources, named as the Holy Quran, the Sunna (Prayer of Muhammad), the Ijma (consensus among the community’s learned men on any issue to be resolved), and finally the Qiya (as outlined by God, what is right and just is deduced by analogy).
Based on the knowledge derived from the above sources, the detailed rules of succession are derived for each of the heirs in different circumstances. In Muslim law, there is no concept of ancestral property or rights by birth. In Islam, a Will may be left behind, but it is only valid for up to one-third of the deceased’s property (unless all the heirs agree to it). As long as it is valid, it is governed by the same laws that govern Indian Will.
- It is prohibited to dispossess a Muslim wife.
- It does not matter if there are more than one wife, since she has to share with them.
- A definite share is given to the widow.
- In Muslim law, male heirs, the sons, receive twice the share as the daughters
In Muslim law, there are two types of heirs:
A Sharer is an heir to the property of the deceased, whereas a Residuary can only benefit from any remaining property after the Sharers receive their share.
Distribution process under the law
- In order to claim any property left by the deceased, it should be ensured that no debts remain outstanding. First, all heirs would have to agree on a plan to pay off the debt.
- Suppose the property is to be divided among brothers according to their father’s Will, in that case, it is necessary to ensure that there are no ambiguities in the Will and to seek legal advice before any sort of settlement. If a Will isn’t clearly drafted at the beginning, this can result in severe legal complications later on, which can be avoided if the Will is drafted in the right direction from the start.
- The property can be divided by way of a partition deed or family settlement if there is no Will.
- Suit of Partition: Each brother can file a suit of partition with respect to the property. Family members, usually members of the same family, execute a partition deed for a property.
- Family Settlement procedure: In a family settlement, each member of the family agrees on how property should be divided between them. It is necessary for all parties to be related to each other and to share the disputed property.
- The process of a family settlement is based on conciliation in which a third party, usually a lawyer or senior member of the family, helps the family resolve their property disputes.
Must Read: Rights on mother’s property after her death
What are the reasons for hiring a property dispute lawyer?
A property dispute involving family can sometimes be complicated and difficult to understand, particularly when the law and legal framework are involved. In such a situation, one may not be aware of the legal issue, its underlying area, whether it requires taking the matter to court, and how the court process operates. When you consult with a lawyer for legal advice, you can gain more comprehension of the choices you have and be able to determine what legal remedy is best for you.
Property attorneys have years of experience handling such cases and can offer expert advice on how to resolve your property issue. A property dispute lawyer who is knowledgeable about the law can help you avoid mistakes that could cause financial harm or require future legal proceedings. In this way, an attorney can help a person get his share of the property quickly and avoid delay.
Among the brothers, there is a property on their elder brother’s name. We all share money for payment, but there is no proof. What can we do?
Since you do not have any proof for contributing the money in purchase of property in the name of your brother, legally he is the owner of the property and it being his self-acquired property he can dispose of the same as per his wishes. Unless, you have the proof, it would be different to get your share. Make contact with a good lawyer, explain all facts and documents to him and act according to his advice.
Any property with multiple numbers of property owners, whether commercial or residential, can be the subject of a partition action.
A partition action is a highly technical legal action with numerous specific court requirements to be met. Hence, we recommend bringing such actions through an experienced legal lawyer to ensure that your rights are protected.
If Father passed away 30 years ago, can the elder brother be forced to divide property between the younger and older brother by law?
In the absence of a father and mother, it is possible by law to divide property between younger and older brothers. Following that, the younger brother may file a partition case in court and begin partition proceedings.
According to the Property Partition Laws in India, there are two types of properties that can be partitioned:
- Self-Acquired Property
- Ancestral property
An inheritance refers to assets left to family members after a person passes away. An inheritance can include cash, investments like stocks or bonds, and other assets such as jewellery, automobiles, art, antiques, and real estate.