inheritance

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.

Suggested Reading. https://blog.ipleaders.in/identify-legal-heir/ 

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.

  1. The surviving sons and daughters and the mother of the intestate, each will take one share.
  2. 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.
https://lawsikho.com/course/certificate-course-in-advanced-civil-litigation-practice-procedure-and-drafting
click above

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

  1. 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.

 

 
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:  
 
https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

 
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content 

 

 

Did you find this blog post helpful? Subscribe so that you never miss another post! Just complete this form…

4 COMMENTS

  1. I HAVE NO PARENTS ALIVE , WE HAVE 4 BROTHERS & 3 SISTERS , OUT OF WHICH 3 BROTHERS HAVE BEEN EXPIRED & 2 SISTERS HAVE BEEN EXPIRED. I MYSELF & ONE SISTER ARE ALIVE. MY 2ND ELDER BROTHER HAS 3 KOTAH LAND WITH 2 STORY BUILDING , HE HAS NO FAMILY & WAS SINGLE . MY 3RD ELDER BROTHER HAS BANK / POST OFFICE BALANCES , WHICH IS A GOOD AMOUNT. AFTER MY 3RD ELDER BROTHER’S DEATH I HAVE FOUND THAT THERE IS NOMINEE IN BANK / POST OFFICE BALANCES IN THE NAME OF MY SISTER WHO IS ALIVE . NOW MY QUESTION IS WHO WILL GET THE LANDED PROPERTY OF MY 2ND ELDER AND WHO WILL GET THE 2ND ELDER BROTHER’S BANK / POST BALANCES. I HAVE DEMANDED 50% OF THE SAID PROPERTY & 50% BANK / POST OFFICE BALANCES. AM I CORRECT ? WHAT WILL BE THE PROCEDURE ? PROPERTY / BANK & POST OFFICE BALANCES ARE IN BISHNUPUR , WB

  2. My father (Ram Singh, expired on 3.4.1994) was eldest among four brothers, Rawat (expired during June 1971), Hemraj (Missing from 24.5.1993), Ran Singh (still lonely alive), two sisters ie Reshma (died before expiring my grand father IN jUNE 1960) & bHULAN (EXPIRED ON 27.12.2009). My Grand mother expired at the time of birth of Ran Singh (died at the time of delivery).
    They lived as joint Hindu Family till 1991. In Feb 1971, Ran Singh separated from joint family and lived in separate house. Rest remained joint. I registered complaint of missing of Hemraj from 24.5.1993 on 24 June 1999.
    Ran Singh tried to get mutated the share of Hem raj in Feb 1996 which was rejected in Sept 1996. Rejected Muration is on record.
    He again tried to get mutation in 2012 in addition to filing a civil suit in Mar 2010 which was decided on 18.07.2017 as ex party in his favor. He neither made any of us any party nor shown Bhulan as his sister.
    As per civil suit, he (Ran Singh) submitted an application to Tehsildar on 23.12.2009 to mutate the share of Hem raj in his favour who advised to go to civil court to declare civil death stating that all his brother had already expired and they have no sister.
    We came to know about decree on 28 Aug 2013 and challenged the decree on 13.9.2013 in civil court. We submitted an application to the Tehsildar requesting not to sanction mutation being decree obtained by fraud and we are going to challenge in court. We obtained stay on 26.9.2013.
    Ran Singh got mutation sanctioned on 27.9.2013 even after stay from court of law.
    So Please advise how the distribution of his (Hemraj landed property)?
    Can we argue for false affidavait, concealing material fact of Bhullan, not making any of us party and share from ancestral property as per Indian succession act.

  3. बडे भाई के नीजी समपती मे छोटे भाई का हिस्सा होता है कि नहीं ?

  4. my husband is only alive brother of his elder UNMARRIED Brother. So will he is the only heir to claim the share of the property or the Son and Daughter of other deceased brother will also entitle to get the share of UNMARRIED DECEASED BROTHER PROPERTY

LEAVE A REPLY