Share of a brother in deceased brother’s property

deceased brother’s property

Among family members, to ascertain the right of one member in the property of another and distribution of property accordingly is not an easy task. It is always better to get legal advice for the same.

We decided to have a write up in one such matter and have tried to address the queries received by us.

Whether a brother has a right in his deceased brother’s property?

Yes, he has. It depends upon the personal law and statutory law governing the parties. It is different in Hindu Law, Muslim Law and the Indian Succession Act.

What is the share of a brother in deceased brother’s property under Hindu Law?

Under Hindu Law, the share is decided as per the Hindu Succession Act (HSA) and the nature of the property. 

  • If the property is ancestral, both the brothers have an equal share in the same being coparceners. The share of the coparceners in the ancestral property keeps on fluctuating till the time partition is effected.
  • If the property is ancestral but has already been partitioned before the death or it is self-acquired property of the brother, devolution is as per section 8 of the Act.

Read Partition of Jointly Held Property in India

What is the position of the brother as per Section 8 of the Act?

  • As per Section 8 of the Act, brother is a Class II heir, and he gets the share in deceased brother’s property if no one is present in Class I heir and father is not alive.
  • Class II heirs are divided into nine entries and brother falls in Entry II as described below:
    • Entry I –     Father
    • Entry II-     Son’s daughter’s son, Son’s daughter’s daughter, brother and sister
  • There are a total of nine entries.
  • Entry I gets preference over Entry II and so on. Within the entry, each of the heirs receives an equal share.

What is the share of a brother as per HSA?

  • Brother is entitled to an equal share in the property with other class II heirs in Entry II. There are four heirs in Entry II.
  • If A dies and he has a brother B and a sister C only. His property gets divided into two equal parts.
  • If all the four legal heirs are present, the property gets divided into four equal parts.

What is the share under Muslim Law?

  • Legal heirs under Muslim law are divided into sharers and residuary.
  • Brother is a residuary heir. Therefore, the share of a brother in the deceased brother’s property depends upon the residue of the property left after sharers have got their share.

What is the position of a brother under Indian Succession Act?

Brother of a deceased brother inherits

  • if the father is not alive and
  • The deceased brother has left no lineal descendant, i.e. direct descendant. A’s child, and A’s child’s child is lineal descendants of A.

What is the share of a brother as per Indian Succession Act?

  • If the mother of the deceased is living and there are surviving brother and sister and children of predeceased brother and sister, they all inherit equally. (Children of predeceased brother/sister inherit one share of their deceased parent among themselves)
  • A has died, survived by mother M and a brother B and two children C and D of a predeceased sister. Here M will get one third, B will get one third, and C and D will share equally the remaining one-third share.
  • If the mother is not living, then the property of the deceased goes to surviving brothers and sisters and children of predeceased brother /sister. All share equally with children of predeceased sharing one share of their parent equally among themselves.

Division of Property Among Daughters and Daughters-In-Law

Division of Property Among Daughters and Daughters-In-Law

Daughters and daughter – in – laws are on different footing when it comes to shares they receive on division of property in a family. Devolution of property by inheritance or succession is influenced by personal laws and is governed by various statutes.

Position of daughters: Equal right as a son

In the case of Hindus (Jains, Sikhs and Buddhists) division of property is governed by Hindu Succession Act, 1956.

Hindu law recognises the concept of a Hindu Undivided family. Only males up to four generations (lineal descendants from a common ancestor) are coparceners, and all others are members of the family. After the amendment of 2005 in the 1956 Act, daughter whether married or unmarried is a coparcener. After marriage, daughter ceases to be a member of father’s HUF but still, she is a coparcener. A daughter has the rights and liabilities of a coparcener.

  • She can demand partition, has a birthright in the undivided family property.
  • She can be a Karta also, i.e. head of the family if she is the eldest coparcener.
  • If the daughter dies intestate, her share in the HUF property passes by succession to her legal heirs as per section 15 of the 1956 Act.
  • A daughter is a coparcener but a daughter in-law is only a member of joint family.

In case of self-acquired property of the father, son or daughter has no birthright in the same. If the father dies intestate, devolution of property takes place as per rules of 1956 Act under which daughter is covered as Class I heir and has an equal right along with son and other legal heirs.

Read: Do grandchildren have a right to their grandfather’s property?

Daughters also have a share in mother’s property. Daughters and sons have equal rights in the property of their mother.

Position of daughter- in- law: Limited Rights

A daughter in law has no right in the ancestral or self-acquired property of her in-laws.

After the death of her husband, i.e. as a widow, she has the right in her husband’s property left behind by him. This property can be either ancestral or self-acquired. The right acquired by her is as a widow of the deceased husband.

Thus if a father dies intestate, a daughter has an equal right in his property along with her brother, but the daughter in law has no right in the property of her father- in law till the time her husband is alive. After the death of her husband, she is entitled to get the share in the property of her husband along with his other legal heirs.

Read: Property rights of a daughter in a hindu family

The daughter in law has a right to residence only till the time matrimonial relationship exists with her husband. The right of residence is there even if the house is a rented accommodation. If the property is a self-acquired property of her father in law, daughter in law has no right of residence as the said house is not shared house because the husband has no share in it.

A widowed daughter in law has right of maintenance from her father in law under certain conditions only, as prescribed in Hindus Adoption and Maintenance Act, 1956.

Division of property:

When there is a division of property in a joint Hindu Family, the daughters enjoy equal right along with sons. The daughter in law has no right in the property of her in-laws. She acquires rights to the in-law’ property only through her husband.

The daughter in one family becomes daughter in law in another family after her marriage. She has full rights in the property of her father even after marriage but limited rights in the property of her in-laws.

Who Has the Right Over A Woman’s Property?

Who Has the Right Over Woman's Property

Rights of a woman to a property as well as rights of others in her property vary a lot and are influenced by various factors like culture, religion, the social status of the woman and the development level of the society to which she belongs.

A woman may acquire property as:

  • Ancestral property
  • Self-acquired
  • Inherited
  • Received as gift/will

In India, the property rights of women are governed by law enacted by the legislature and personal laws.

A. In the case of Hindu women (Jain, Sikh and Buddhists are included)

The property of a woman devolves as per the Hindu Succession Act, 1956. The Act deals with intestate succession and not wills.

Hindu woman is an absolute owner of the property acquired by her through inheritance, partition, gift, will, in lieu of maintenance or purchased by her. The ownership gets limited in case the property transfer is subject to some restriction.

Sec 15 of the Act, 1956 provides the list of heirs of Hindu Woman’s property if she dies intestate and section 16 prescribes the order of preference:

  • Own children, children of predeceased children, husband – all share equally
  • Heirs of the husband (only when heirs in point 1 are absent)
  • Parents of Hindu woman (only when heirs in point 1 and 2 are absent)

Two exceptions to this rule are

  • If property by a Hindu woman is inherited from her father – in the absence of her children or predeceased children’s children, it goes to the heir of her father and not to the husband.
  • If the property is inherited from her husband or father in law – in the absence of her children or predeceased children’s children, it goes to heirs of the husband.

In case of self-acquired property, it is always advisable to make a will in time so that the property is bequeathed to beneficiaries one desires. As per the scheme of the Act, the self-acquired property of a Hindu Woman would go to heirs of the pre-deceased husband in case she dies intestate and has no issues.

After the amendment of 2005 in the 1956 Act, daughters are also coparceners, and they inherit the share in the ancestral property equally as a son and subject to same rights and liabilities as a coparcener. If she dies intestate, her interest devolves as per 1956 Act. She also has a right to make a will of her share.

Read More: Property rights of daughters Under Hindu Law in India

B.    Muslim woman

Under Muslim Law, there is no distinction between self-acquired or ancestral property for inheritance purposes. Inheritance opens only on the death of a person. Before a person dies, no legal heir has any right in the property. Legal heirs in Muslim law are divided into two categories

  • Sharers
  • Residuary

Sharers get their share first and residuary get what is left.

If A Muslim woman inherited property from any relation i.e. husband, son, father, mother, she becomes the absolute owner of her share and can dispose it. A Muslim woman in inheritance gets half the share of what male heir gets.

If a Muslim woman wants to make a will of her property, she cannot give away more than one-third share of her property, and if her husband is the only heir to her property, she can give two-third of property by will.

A child in the womb of his mother is entitled to inherit if born alive.

C.    For others (Christian, Parsi and Jews)

For women of faiths other than Hindus, Buddhists, Sikhs, Jains and Muslims, succession whether Testamentary or non-testamentary, is governed by India Succession Act, 1925. Blood relatives of woman inherit even in the presence of husband and husband’s relatives. Inheritance laws under this Act are generally gender just.

Inheritance under Hindu Succession Act – Who can/Who cannot?

Inheritance under Hindu Succession Act – Who can Who cannot

Inheritance issues can threaten to create divides that are unimaginable and unmanageable! We frequently have clients coming to us with these problems, and we endeavour to get fair deals for all involved.

The Hindi Succession Act, 1956 has been enacted to evolve a uniform system of property inheritance. The Act applies to intestate succession. The Act has been amended to keep pace with changing social requirements.

There is a list of heirs provided in the Schedule of the Act. These heirs are entitled to intestate succession. The Act applies to all those who are Hindu as per the definition is given in the Act. It does not apply to those who are Muslim, Christian, Parsi and Jew by religion.

All the heirs who are entitled to inherit under the Act have a right to succeed intestate succession. Many people come to us for queries in property inheritance. Some of the frequently asked questions are:

1. What does intestate mean?

Intestate means a person who has not made any will of his property. Even if a will has been made, but it is not capable of taking effect, it is equivalent to a person dying intestate.

2. Who is an heir?

As defined in the Act, an heir is any person, male or female who is entitled to succeed to the property of an interstate.

3. What is the order of succession, if any?

Under the Hindu Succession Act, inheritance of property takes place as follows:

A. In case of a male dying intestate, the order of succession is:

  • Class I heirs
  • Class II heirs ( if no heir in Class I)
  • Agnates (if no heir in Class I and Class II)
  • Cognates (If no heir in Class I, Class II and Agnates)

B. In case of a female dying intestate, the order of succession is:      

  • Sons and daughters (if predeceased, their children) and husband
  • Heirs of husband
  • Mother and father
  • Heirs of father
  • Heirs of mother

4. Is there any disqualification, in property inheritance under Hindu Succession Act?

Yes, there are certain disqualifications provided in the act which bars a legal heir from inheriting the property. These are:

  • Murderer: A person who commits murder or abets the commission of murder is disqualified from inheriting the property of:
  1. The person murdered
  2. Any other property to which he becomes entitled to succeed as a result of murder

For the disqualification, Commission of Murder and Abetment (assisting) of murder stand on the same footing.

  • Conversion: A Hindu, who converts to another religion, he is not disqualified. His children who are born after his conversion and their descendants are disqualified. The rule applies only if they are converts when the succession opens.

Any disease, defect or deformity in the person is not a disqualification. It will not disentitle him for property inheritance under the Hindu Succession Act.

5. Can a widow inherit after remarriage?

Yes, widow remarriage is no bar under the Act, to inherit her deceased husband’s property.

6. Can a stepson inherit under the Act?

No, the expression “son” in Hindu Succession Act does not include stepson. It includes an adopted son.

All legal heirs as described in the Schedule of the Hindu Succession Act are entitled to inherit. There is a specific mention of disqualifications in the Act. These disqualifications will disentitle an heir for property inheritance.

Daughters have equal shares in Ancestral Property,even though they were born before enactment of the Hindu Succession Act – A Judgement by Supreme Court

JudgemePrakash-v-Phulavati-2016-2-SCC-36

The Supreme Court has ruled that daughters born before the enactment of the Hindu Succession Act of 1956 are entitled to equal shares as the son in ancestral property. The verdict was issued in an appeal filed by daughters who challenged a decree in a partition suit that excluded them from the partition.

The Partition suit was filed in 2002 by the grandson of the deceased propositus of a joint family. The court found that daughters were not entitled to share in the property because they were born before 1956, the year the Hindu Succession Act was enacted. In the judgement, the Trial Court also denied them the benefits of the 2005 amendment, which gave daughters the same coparcenary status as sons. The High Court upheld the decree of Trial court.

The Supreme Court ruled that the courts below had made a mistake in the judgement that daughters were not empowered to partition because they were born before 1956. Under Section 6 of the Law, when a coparcener that left behind any female sibling designated in Class I of Schedule to the Law (which also includes a daughter), his undivided interest in Mitakshara Coparcenary property would not devolve upon the surviving coparcener by survivorship but upon his heirs by intestate succession. Therefore, the deceased coparcener interest would devolve by intestate succession on his heirs, including his daughters.

The Court has also held in judgement in favor of the daughters that they were entitled to the benefit of 2005 amendment as well, and that basis also they were designated to shares. It was settled in Prakash v. Phulavati (2016) 2 SCC 36 that right under the amendment area available to the daughters living on the day of the act, regardless of when they were born. In the present case, the bench comprising Justice A.K Sikri and Justice Ashok Bhushan further explained this and stated that the amendment stated that a daughter ‘shall by birth’ would become a coparcener in her own right in an equal way as son. Therefore, the daughter will receive the coparcenary right by virtue of amendment, ‘since birth’. It was observed as follows: –

Section 6, as amended, provides that on and from the initiation of the amendment Act, 2005 the daughter of the coparcener shall by birth become the coparcener in her rights in the same way as the son. It is obvious that the status is given to the sons under the old section and the old Hindu law was to treat them as coparceners since birth. The amended provision now also legally recognizes the rights of coparceners of daughters since birth. The section uses the terms in the same way as the son. It should, therefore, be evident that both the sons and the daughters of a coparcener have been given the right of becoming coparceners from birth. It is the fact of birth in a coparcenary that creates the coparcenary, and therefore the daughters and sons of a coparcener become coparceners by birth. The devolution of coparcenary property is the later stage and an outcome of the death of a coparcener. The first stage of a coparcenary is certainly its creation, as explained above, and as is well recognized.

The fact that the lawsuit was filed in 2002 was also considered irrelevant. The Court stated in the judgement that so far as partition suits are concerned, the partition becomes final until only on the passing of final decree. The decree was issued in 2007. Here the powers of the daughters were established in 2005, and since the Trial Court ought to have taken into account that aspect when adopting the decree in 2007.

The Court also noted and mentioned in the judgement that the 2005 amendment was brought in on the touchstone of equality, thus seeking to remove the perceived disability and prejudice faced by a daughter.

The major changes brought forward about in the Hindu Succession Act of 1956 by changing it in 2005, are perhaps a recognition of Roscoe Pound immortal words, which appear in his famous “The Ideal Element in Law” contracts that “the law must be stable and yet it cannot stand still. Hence all thinking about the law has fought to reconcile the conflicting demands of the need for stability and the need of change.” – the Bench observed.

Therefore, the judgement is in the favor of the daughters and says that shares will devolve on them as well.

Download Full Judgment