Inheritance laws are not only complicated but also very scattered in India. Because of the absence of Uniform Civil Code, there are different inheritance laws for different religion in India. What are the inheritance rights given to a brother in deceased brother’s property? What are the provisions governing inheritance laws in India? Does brother have rights over brother’s property? Does sister have rights over brother’s property or vice versa? An article by Anubhav Pandey dealing with the above-raised issues.
Hindu inheritance law and succession of brother over deceased brother’s property
The Hindu Succession Act applies where the person dies without declaring a will. In legal terminology, Intestate. A brother might get a share in deceased brother’s property but only where certain conditions are fulfilled.
Among Hindus, the manner in which property will pass to the heir is thoroughly divided into classes. Such as class 1 heir, class 2 heir and so on. There are rules which govern the passing of property.
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Rule1 When a Hindu male dies, one part of his property passes to his widow. If there are more than one widow, in such a case, all widows together will take one share in the property.
- The surviving sons and daughters and the mother of the intestate, each will take one share.
- In cases of predeceased sons or daughters of the Hindu (whose property is to pass), in case of predeceased daughter, the surviving sons and daughters get an equal portion, and, where the case is of predeceased son, his widow (or widows together) and the surviving sons and daughters gets equal portions.
Rule2 Share of brother in deceased brother’s property
- If there are no heirs in Class I, the property will be given to the heirs within Class II.
- If there are no class 1 hair as mentioned above the whole property will pass on to the father.
- If there is no father, then, in this case the property will be given to brother, sister, son’s daughter’s son, daughter’s daughter’s daughter in equal share.
Muslim inheritance law and passing of deceased brother’s property to surviving brother
After death, all the expenses are deducted from the property of a Muslim and whatever is left passes for inheritance. There is no distinction for inheritance purposes between movable and immovable property. Among Muslims, there is no difference between personal and inherited property.
Muslim inheritance law does not recognize the principle of representation.
- Suppose, A has two sons B, and C.
- B has 2 sons while C has 4 sons.
- B dies before A.
- The property of A will only pass on to C and his 4 sons. This is applicable to both Shia and Sunni law.
- In India, the rules that govern inheritance under the Muslim law In cases of nNon testamentary succession is the Muslim Personal Law (Shariat) Application Act, 1937, whereas, when one who has created his will before death, the inheritance is governed under the relevant Muslim Sharia Law as applicable to the Shias and the Sunnis.
Share of brother in deceased brother’s property
Under Quran and Sharia law, the following are the prescribed shares which pass after the death of a male. Father, mother, son, daughter and spouse get a confirmed share. Rest depends upon the residue of what amount of property is left and the relatives alive to inherit.
(Everything mentioned is from the perspective of deceased person)
Son’s share: Son is the next head after the deceased.
Wife’s share: in case wife is left with no children she gets ¼ and if with children ⅛. It is confirmed share.
Husband’s share: ½ in case when the wife dies with no child/children. ¼ when dies with children.
Daughter’s share: Only in the case when there is no son. Half in the case daughter is unmarried.
Father’s share: ⅙ share if children are alive. Father is very powerful. If after calculating, everything left can go to father. Father can block brother.
Mother’s share: ⅓, but if deceased have children it gets reduced.
Granddaughter’s share: Granddaughter is given a share only in the absence of son and daughters.
Grandfather’s share: Only is father is not alive. Not as powerful as father. ⅙ prescribed share.
Grandmother: Only in the absence of mother and father. Both father’s and mother’s side. Prescribed share is ⅙
Sister’s share: If only one sister she gets ½ if multiple they share from the 2/3 on the condition that there should be no daughter or granddaughter and also the absence of brother is required. The absence of father and grandfather is also necessary.
After giving of the inheritance to all the ‘prescribed relatives’, fractions left out are given to these relatives depending upon priority first basis.
First priority is given to son and daughter, then Grandson and Granddaughter, then Father and then comes Brother and Sisters. Therefore, brother in nowhere given priority in the deceased property. Only in the residual property lies Brother’s share.
Indian Succession Act and share of brother in deceased brother’s property
Consanguinity is the quality of being descended from the same ancestor as another person. Lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct line from the other, as between a man and his father, grandfather and great-grandfather, and so upwards in the direct ascending line; or between a man and his son, grandson, great-grandson and so downwards in the descending line.
Simply put the relationship between direct line, parents, child, and grandparent.
Situations where brother acquires deceased brother’s property
- If the deceased father is dead, but the mother is alive and there are also brothers or sisters of the deceased living, and there is no child living of any deceased brother or sister, the mother and each living brother or sister will succeed to the property in equal shares.
- A dies intestate, survived by his mother and two brothers of the full blood, B and C and a sister D, who is the daughter of his mother but not of his father. The mother takes one-fourth, each brother takes one-fourth and D, the sister of half blood, takes one-fourth.
2. If the deceased father is dead but the mother is living, and if any brother or sister and the child or children of any brother or sister who may have died in the intestate’s lifetime are also living, then the mother and each living brother or sister, and the living child or children of each deceased brother or sister, will be entitled to the property in equal shares, such children (if more than one) taking in equal shares only the shares which their respective parents would have taken if living at the deceased death.
- A deceased, leaves his mother, his brothers B and C, and also one child of a deceased sister, D, and two children of E, a deceased brother of the half-blood who was the son of his father but not of his mother. The mother takes one-fifth, B and C each take one-fifth, the child of D takes one-fifth, and the two children of E divides the remaining one-fifth equally between them.
3. Where the deceased has left neither lineal descendant, nor father, nor mother, the property will be divided equally between his brothers and sisters and the child or children of such of them as may have died before him.