Property Dispute between Brothers
Property disputes

Property Dispute between Brothers

In India, property disputes are regulated by various legislations, including the Indian Succession Act and the Hindu Succession Act, which apply differently based on religious affiliations such as Hindu, Muslim (with variations for Shias and Sunnis), and Christian. Despite these codified laws, distinctions arise in the distribution of property, specifically between ancestral and self-acquired property.

Under the Hindu Succession Act of 1956, individuals have the autonomy to manage and dispose of their self-acquired property. In contrast, the distributive property of ancestors is governed by specific rules. Within a family, coparceners, a small unit, possess a birthright in ancestral  distributive property. According to Hindu law, siblings, including adopted children but excluding stepchildren, are entitled to equal shares in their parents' property. Consequently, stepbrothers or stepsisters do not have a claim to a share in their father's distributive property under Hindu law, according to distribution laws among brothers, every heir is entitled to an equal share in ancestral distributive property. In the presence of a will, the distribution is carried out by the instructions specified in the will.

The Hindu personal law of inheritance, governed by the Hindu Succession Act, 1956, applies to individuals who are Hindu by religion or any of its forms, including Buddhists, Jains, and Sikhs. Section 8 of the Act outlines the rules of succession upon the death of a Hindu male, classifying the relatives into different classes. Section 9 further establishes the order of succession among the heirs as identified in different classes under Section 8, with the Act's Schedules providing a list of all heirs as per the classes.

 

As per the law for distribution among brothers, In the event of a Hindu male dying intestate, his property devolves upon his:

  1.  Class I heirs first, to the exclusion of all other heirs.
  2. If there are no Class I heirs, it then passes to the Class II heirs exclusively.
  3. In the absence of both Class I and Class II heirs, the property devolves upon the Agnates, and if none are present, it further passes to the Cognates.
  4. If no eligible heirs exist, the property is escheated to the government.

 

For a deceased Hindu female, the property is distributed in the following order:

1. Spouse and children

2. Heirs of her husband

3. Parents

4. Heirs of her father

5. Heirs of her mother

 

Other laws:

In Muslim law, property distribution among brothers and sisters is guided by Sharia principles, which allocate fixed shares to various heirs. According to these principles, brothers inherit twice the share of sisters in the distributive property. This implies that the collective inheritance of brothers is twice that of sisters.

In contrast, Christian law in India lacks uniform personal laws, and property distribution among brothers and sisters is regulated by the Indian Succession Act of 1925. This act provides the legal framework for inheritance matters and governs the distribution of property among family members.

Similarly, Sikh law and Jain law do not have specific personal laws pertaining to property distribution. Instead, they adhere to general inheritance principles followed by the respective families. This means that the distribution of property among brothers and sisters in Sikh and Jain communities is determined by customary practices and family agreements rather than specific legal codes.

 

Changes in the Hindu succession act-

In 1956, the Hindu Succession Act codified Hindu customary laws in India, granting equal inheritance rights to daughters and sons for both coparcenary and self-acquired property. Coparcenary property refers to ancestral property owned jointly by the Hindu Undivided Family (HUF), with only men initially recognized as coparceners. The 2005 amendment expanded coparcenary rights to women, allowing them to inherit joint family property from birth.

 

Self-acquired property is individually purchased using personal income, and the owner has absolute disposal rights. Dying "intestate" means passing away without a valid will. Before the 2005 amendment, coparcenary property distribution followed the survivorship principle, favoring male heirs. However, the amendment ensured equal distribution to all heirs, including daughters.

 

In a recent Supreme Court judgment, the court clarified that, based on Hindu customary law, a daughter has the right to inherit her father's self-acquired property if he dies intestate, challenging the previous understanding that favored male heirs through survivorship. The decision considered commentaries from various Hindu Law schools to establish this interpretation.

 

 

Types of property

Property can be broadly classified into two main types: ancestral distributive property and self-acquired  distributive property. Ancestral property, as defined by hereditary laws, is the wealth passed down through generations within families. This encompasses a diverse range of assets, including real estate, businesses, investments, and personal belongings. The distinctive feature of ancestral property is that it must be equitably divided among family members, and each member inherently possesses a birth right to a share. Under Indian law, property inherited by the male lineage for four generations or more is considered ancestral property. This type of property must be equally divided among the next generation of males in the same family, regardless of their age or location. It is required to remain undivided during this period to pass on ancestral rights as per the law. Equal division and sharing of such properties are mandated for both sons and daughters from birth onwards.

Before the amendment and the laws prior to 2005, only sons were entitled to a share in their father's ancestral property. However, the current legal framework allows daughters to claim a share in the property if they have not received it. According to Indian law, property distribution among brothers must be equal, and daughters have equal rights to it. Fathers cannot distribute the property through a will as they please; it must adhere to the legal provisions.

In the Baikuntha Nath Paramanik v. Sashi Bhusan Paramanik case, the Supreme Court ruled that if a joint family has adequate resources for the contested acquisitions, there is a presumption that properties registered in the names of those managing the family assets are considered acquisitions for the entire family.

 Conversely, self-acquired property refers to assets that an individual personally accumulates during their lifetime. This may include a home purchased outright, a business initiated by the owner, or an inheritance received from external sources. The crucial aspect of self-acquired property is that the owner retains complete control over it, and the distribution of this property is dictated by the owner's will. This flexibility enables individuals to plan and execute wealth transfers through mechanisms like trusts and estate planning. In the absence of a will, self-acquired property is transferred to family members.

 

Death of father intestate

When a father passes away without leaving a will, all heirs are entitled to an equal share of the property, subject to document verification. The heirs can choose to divide the property immediately or defer the partition as needed. According to the Hindu Succession Act, the class 1 heir, being the closest to the deceased property owner, is entitled to an equal share. In cases where one of the class 1 heirs is missing, four class divisions are considered under Indian law for property distribution among siblings.

 

In the time preceding 2005, a married daughter was not recognized in the Hindu Undivided Family (HUF) and, therefore, had no rights or shares in her father's property. However, with subsequent amendments in the Indian property distribution laws for brothers and sisters, married daughters were included as coparceners, granting them the right to claim their share regardless of their marital status.

 

Inheritance

Inheritance through will-

Inheriting property through a Will involves a legal declaration by an individual expressing their intentions regarding the distribution of assets upon their death. A Will is a legal document specifying the individuals entrusted with managing the estate and overseeing the transfer of property after the testator's demise. If a father leaves a Will, his property will be distributed according to the intentions outlined in the document among his children or any other individuals named therein.

 

The deceased person leaving behind a Will is known as the 'testator,' and the person appointed by the testator to execute the terms of the Will is termed the 'executor.' However, if a court appoints an individual for this purpose, they are referred to as an 'administrator.'

 

Inheritance in the absence of a will-

In the absence of a Will or a similar document expressing the deceased person's intentions, inheritance in India is governed by the law of succession. Before heirs can claim any property, it is imperative to ensure there are no outstanding debts. All heirs must agree on a strategy to clear the debts.

 

When distributing property among brothers based on a Will left by their father, it is crucial to ensure clarity in the document. Seeking legal advice during the settlement process is essential to avoid potential legal complications later on.

 

In cases where no Will exists, property distribution can occur through a partition deed or a family settlement. A suit of partition allows any or all brothers to file a legal claim regarding the property, and a partition deed is executed among various family members. A family settlement involves a mutual agreement among family members on how to distribute the property. This conciliation process often includes a third person, such as a lawyer or a senior family member, facilitating a mutually acceptable solution to the property dispute.

 

Legal procedure

In the absence of a deed or will left by the legal owner of the property, the legal procedure for property distribution, in the event of a property dispute, involves the use of a partition deed or family settlement. All brothers can file a deed or suit of partition with mutual consent to divide the property into equal parts, adhering to document verification and complying with Indian law for property distribution among brothers.

Members may opt for a mutual agreement or family settlement to distribute the property among themselves without court intervention, in accordance with Indian property distribution laws for brothers. Alternatively, they can seek legal advice to resolve matters outside the court. The claiming members must be related and have a share in the property involved.

Essentials for property distribution include the simultaneous equal distribution of property among Class 1 heirs, ensuring fairness in accordance with Indian law. Only biological and adopted children are considered as property shareholders; stepchildren are not included. The children of any deceased daughter or son also have rights in such properties, receiving equal shares as per the Hindu Succession Act. Legal advice and mutual consent can facilitate the settlement of any property, and even if an individual converts to another religion, they are still entitled to their share of the property.

 

Case law

The Supreme Court of India resolved a century-old family property dispute concerning the partition of land among three brothers in Uttar Pradesh. This dispute, dating back to 1928, involved Sita Ram, Ramesar, and Jagesar, sons of Gajadhar Misra. The contention centered around the distribution of the brothers' property shares. Sita Ram, being childless, Ramesar having a son named Bhagauti, and Jagesar with three sons named Basdeo, Sarju, and Shabhu were the key parties.

 

The Supreme Court upheld the Allahabad High Court's decision, which, in turn, affirmed the deputy director of consolidation's ruling, granting equal shares of the land to the Ramesar and Jagesar branches. The court clarified that Jagesar's branch would only be entitled to Sita Ram's 1/3rd share if it could be proven that Ramesar had predeceased Sita Ram. This matter wasn't addressed in the Civil Court's partition suit and was raised only during consolidation proceedings.

 

The Supreme Court noted the absence of evidence regarding the dates of death and found that the deputy director of consolidation deemed it fair to distribute Sita Ram's 1/3rd share equally between the Ramesar and Jagesar branches. Consequently, the Supreme Court dismissed the appeal, upholding the deputy director of consolidation's judgment.

 

Conclusion

The post-2005 amendments in Indian property laws have significantly improved the Hindu Undivided Family (HUF) and its partition procedures. These amendments ensure that each legal heir can equally own the property without complications or disruptions. In states where women and men may face challenges in receiving their respective shares in family ancestry, it becomes crucial to implement the Indian law for property distribution between brothers and sisters.

 

Additionally, the legal framework prohibits criminals involved in serial crimes from claiming or inheriting any property, aligning with basic values and principles that naturally govern succession. In conclusion, property disputes are multifaceted issues that can arise for various reasons, involving disagreements over ownership, possession, or use of a property. Resolving these disputes may entail negotiation, mediation, arbitration, or litigation, and seeking legal advice is essential. The overarching goal is to find a resolution that safeguards the interests of all parties while minimizing the time, cost, and emotional strain associated with the dispute.

How to draft your Will and when?
Wills / Trusts

How to draft your Will and when?

Introduction:

Creating a will is essential to guarantee that your possessions are distributed in accordance with your preferences following your death. A will enables you to select your beneficiaries, appoint an executor, and make specific bequests, such as personal property, etc. In addition, a will can reduce disagreement among your loved ones and guarantee that your estate is administered in a timely and effective manner. Taking the time to write a will is a simple but necessary step in protecting the interests of your loved ones and ensuring that your desires are carried out after your death.

 

When should you have your WILL drafted?

Everyone should make a will at some point in their lives, no matter how old they are or how much money they have. Many people think that wills are only important for older people or people with a lot of money, but the truth is that everyone can benefit from having one. It's never too early to start thinking about your estate plan and making sure your loved ones are taken care of after you die. Some of the most common reasons to make a will are getting married, having children, buying a house, or going through a big life change like getting divorced or losing a family member. In the end, anyone who wants to make sure their assets are divided the way they want should think about making a will.

 

Important aspects to keep in mind while drafting a WILL

 

1: Determine your assets

The first step in drafting a will is to determine your assets. This includes everything you own, such as real estate, bank accounts, investments, and personal belongings. It's important to make a list of all your assets and their approximate value to ensure that nothing is overlooked.

 

2: Identify your beneficiaries

Once you have determined your assets, the next step is to identify your beneficiaries. These are the individuals or organizations that you wish to leave your property to. Beneficiaries can be family members, friends, charities, or other organizations. It's important to consider the needs and circumstances of each beneficiary when making these decisions.

3: Appoint an executor

An executor is the person who will be responsible for carrying out the instructions in your will. They will manage your estate, pay any debts or taxes owed, and distribute your assets according to your wishes. It's important to choose someone you trust and who is willing to take on this responsibility.

 

4: Draft your will

Once you have identified your assets, beneficiaries, and executor, it's time to draft your will. There are two options for drafting a will: hiring an attorney or using a will-making software or template. If you have a complex estate or have concerns about legal issues, hiring an attorney may be the best option. However, if your estate is relatively simple, using a will-making software or template can be a cost-effective and efficient option.

When drafting your will, be sure to include the following information:

  1. A clear statement that the document is your will
  2. Your name, address, and contact information
  3. A statement revoking any previous wills or codicils
  4. The appointment of an executor
  5. A description of your assets and how you want them to be distributed
  6. Specific gifts, such as personal belongings or heirlooms
  7. Any instructions for the care of minor children or dependents
  8. Any charitable bequests or donations
  9. Your signature and the signatures of two witnesses

Get is professionally drafted: WILL DRAFTING

5: Sign and store your will

Once your will is drafted, it must be signed and witnessed in accordance with state laws. In most states, the will must be signed by the testator (the person making the will) and two witnesses who are not beneficiaries or spouses of beneficiaries. The witnesses must be present when the testator signs the will and must sign it themselves. It's important to follow state laws carefully to ensure that your will is valid.

After your will is signed, it should be stored in a safe place, such as a fireproof safe or with an attorney. Be sure to inform your executor and loved ones of the location of your will, so they can access it easily after your passing.

 

6: Review and update your will

Finally, it's important to review and update your will regularly. Life changes such as marriage, divorce, births, deaths, and changes in financial circumstances can all impact your estate plan. Review your will every few years or after major life changes to ensure that it still reflects your wishes.

 

Conclusion:

Making a will for your property is one of the most important things you can do to make sure that your assets are divided the way you want after you die. By taking these important steps, you can make a legal document that gives you peace of mind and protects your loved ones' interests. Don't forget to think about what you have. 

Everything you should know about Inheritance Laws In India
Property

Everything you should know about Inheritance Laws In India

In Indian culture, inheritance is often used as a means of income as well as a record of family history. It's essential to comprehend inheritance laws to protect your rights. To prevent property scams, family feuds, or other legal snares, all legal heirs of any property or asset would advantage from a full awareness of India's inheritance laws. All claimants should be informed of their status as legal heirs, if a will is present, and whether any succession rules need to be followed. 

 

ROLE OF WILL

A will is a formal document that enables the owner of the property to distribute or bequeath their assets as they see fit. Probate is required to carry out the Will after the holder's passing. Probate allows the executor of the Will to proceed with the administration of the estate when a copy of the Will is certified to prove its validity before the court. Even if a will may be challenged by the heirs, beneficiaries, and other kin in court, its role is stronger than the laws of inheritance. If there is a will, instruct the executor to distribute the assets in accordance with the terms of the will. Follow the guidelines outlined in your faith's heirship regulations if there is no will.

 

HINDU – MALE SUCCESSION

The assets are given to the person’s legal heirs for a Hindu male. The heirs are divided into 4 classes, and the ones falling in the first consist of the closest family members. They include – the mother, children and spouse. The second class then follows and is organised in a particular order. This order decided the pattern of making the claim to the property. The father is at the top of this hierarchy, inheriting the whole property. After him, this right is endowed to grandchildren, brothers and sisters. Then, at last, there are left two classes. Firstly, the ones to get the right to claim the property are the related members through the male relation, who are called agnates. If, however, they are not there, the inheritance is passed to the cognates. The rule of choosing the closest relative is followed in these two classes. 

 

HINDU – FEMALE SUCCESSION

For the inheritance in relation to females, the ones to get the first in line are the spouse, children, and grandchildren will all be given priority over her assets. If the woman is unmarried, her parents are given this prerogative. The right to inheritance is not decided by the division of classes as in males. However, the property is allocated differently depending on how it was acquired. Self-acquisition, parent inheritance, and husband- or father-in-law inheritance are allocated in different ways with different precedence orders. 

  • Self-acquired: In case the female is married, her spouse and children come in line. The husband’s heirs can get the inheritance of the property if they are not alive. This is not so for an unmarried female as her parents inherit the property. 

  • Parental Inheritance: In this case, even if the husband and children are no more, the property will pass on to the heirs of the father. This is true even for an unmarried female. 

  • Inheritance from Husband or Father-In-Law: in the instance of the absence of a husband and children, the property will pass only to the husband’s heirs. 

 

General Provisions – applicable to all

  • Right of the child in the womb: An unborn child has the same legal rights as a child who has already been born. In a property division, a pregnant widow's unborn child will thus be considered a different inheritor and have the same rights to the deceased person's share of the property as the widow.

  • Hindu at the time of succession: If a person converts to another religion, they won’t be eligible to inherit under the Hindu succession act. A person needs to be Hindu at the time of succession to be able to inherit. 

  • Specific Disqualification: If a person has been in explicit terms excluded from inheriting the property, then they will no longer to eligible to inherit,

  • Murder: If a person is found guilty of murder or participating in the offence, they won’t be eligible to inherit the property.

  • Absence of heir: If there are no heirs to inherit the property, it goes to the government.

  • Relinquishment: If a person does not want to inherit the property in question, they can give up their right to inherit the property.  

  • Widow remarriage: The widow of the deceased will no longer have the right to be an heir to the deceased's property if she marries again. This does not hold true for the widow of the son or brother, who will forfeit her claim to succeed to the decedent's property if she marries again at the time of succession.

 

MUSLIMS’ SUCCESSION

Shias and Sunnis have their own personal laws, which are not formalised in any legislation. Personal law places a bar on inheritances for Sunnis who follow Hanafi Law to a max of 1/3rd of the assets that are remaining after giving the cremation costs, unpaid domestic servant payments, and other obligations. The remainder of the inheritance must be divided among the rightful heirs. The sharers are first in line, followed by residuaries. Sharers are entitled o acquire a certain part or share of the property, while residuaries are entitled to the rest. Only when both of them are not there does the distant kindred become the successor. 

 

CHRISTIANS’ SUCCESSION

For Christians, widows/widowers acquire one-third, with the remaining assets going to their lineal descendants. In the absence of lineal successors, the widow is entitled to 1/2 of the estate, with the other kin receiving the balance, or "kindred." Each child or, in the event that a child has already passed away, all of his descendants will receive an equal share among lineal descendants. In the family, the father is given preference, then the mother, siblings, and brother in that order.

 

PARSI’S SUCCESSION

Sections 50 through 56 of the Indian Succession Act of 1925 cover the Parsi inheritance law. The rights of the widow and widower are equal, much like in Christian laws of inheritance. In general, the widow, son, and daughter of a Parsi male who passes away receive equal shares, while his parents receive half of what each kid receives. A pre-deceased daughter's part is divided among her children, and if there is a pre-deceased son, his half is divided among his widow and children. Priority is given to the next-of-kin in order of standing. Therefore, even if the dead had no children, the widow or widower only gets half of the share; the other half goes to the next of kin. 

How legal heirs can transfer real estate of deceased
Property

How legal heirs can transfer real estate of deceased

Inheriting property after someone’s death has multiple processes, as all of them require a different fundamental setting. When a person dies, they may or may not leave behind a will. Due to this, there are two different processes that are carried out to ensure the inheritance and subsequently the transfer of the deceased person’s property. 

Deciding Heirs

When the deceased had already made a will

A will only becomes enforceable after the death of the testator, and unless there are any challenges to the will, the distribution of property is carried out in the manner laid down in the will. The will can also be either registered with the sub-registrar, even though that is not a necessity. The court will grant probate if there are no protests. A probate is will certified by court and is valid proof of the will.

When the deceased had not made a will 

The process is slightly more complicated when there is no will guiding the distribution of property after the person’s death. In that case, the heirs of the deceased can appoint amongst themselves one or more administrators who then obtain Letters of Administration to the estate of said deceased person. The distribution of the property then is on the basis of mutual settlement between the legal heirs, or in some situations, the court settles the distribution instead. Usually, the laws of succession come into effect in the case where there is no will made. Laws of Succession are different according to the religion followed by the deceased, so the personal laws differ in differentiating between legal heirs. Currently, non-Hindu religious groups adhere to their own particular regulations in this area. Hindu succession law entails Hindu Undivided Family (HUF) rules for the property. All legitimate heirs or coparceners of HUF holdings are given a right to the coparcenary property at birth. If the deceased passes away without a will for self-acquired property, coparcenary rules will apply to both ancestral and self-acquired property.

Documentation

Once the distribution of property between the beneficiaries is decided, there is documentation required to enable the transfer of the property of the deceased. An application to transfer property needs to be given at the sub-registrar’s office. Usually, the documents required are as follows: 

  • Death Certificate

  • Will 

  • Will with probate/succession certificate

  • Ownership documents of the assets

  • If there is absence of will: 

  • Affidavit

  • No-objection certificate from other legal heirs/successors

  • Declaration of any consideration paid to claim another heir’s share of the property

Mutation

After the property gets transferred, mutation of the property title is required. Getting the property in your name in all official records after an inheritance is known as mutation. You won't be able to use the property for any loan mortgage, rent agreement, or sale without a change of title ownership recorded in official records, such as those kept by municipal corporations. It is a process carried out to transfer the title of an immovable property from one person to the other in the land revenue records, as for the payment of property taxes. This is also required as it adds to the evidentiary value of a person owning a property. The documents required for mutation of property differs according to the state, but the main document required are those proving the ownership and transfer of property. When it is ancestral property without the required resources, one needs to trace the title of the property, and claim evidence of whether or not the deceased person had paid any compensation to acquire the said property. The process of mutation is carried out in the local municipality office.

Rights and Liabilities

Upon inheriting a property, the successor inevitably assumes any existing encumbrances, mortgages, disputes, and the like. Furthermore, any transfer of a mortgaged property necessitates written consent from the lender. Hence, in the event of the demise of a property owner with an outstanding mortgage, the successor - who could be the spouse or children of the deceased - inherits the responsibility for settling the remaining loan. Conversely, if the deceased had procured a home loan insurance, the insurer would be obliged to settle the unpaid loan with the lender. In such a scenario, the successor would need to secure a loan clearance certificate from the lender, alongside the original property documents previously submitted for the loan, subsequent to the insurer's payment.

Inheritance under Muslim Law
Property

Inheritance under Muslim Law

According to the Indian legal system, the rules governing inheritance under Muslim law vary depending on the type of property involved. The Muslim Personal Law (Shariat) Application Act, 1937, for example, will apply in the situation of non-testamentary succession. Contrarily, in the event of testamentary succession (which means the individual made a will before to passing away), the Muslim law of Shariat governs the inheritance of the deceased's property and is equally applicable to Shia and Sunni religions.

 

What sre the sources of Muslim Law of Succession

Four main sources of Islamic law serve as the foundation for the Muslim Law of Inheritance. The list is as follows.

  1. The Book of the Holy Quran.

  2. The Sunna is also known as an example of the Prophet's actions.

  3. The Ijma, is also known as the general agreement among the educated members of the society over the course of action that should be taken regarding a certain issue.

  4. The Qiya, is a logical inference of what God has established as the proper and fair course of action in line with the moral precepts that he has established. 

 

TYPES OF HIERS 

The Sharers and the Residuary and Distant Kindred are the different categories of heirs recognized by Muslim law. 

  1. The individuals who are legally entitled to a portion of the deceased person's property are known as sharers.

  2. After all of the sharers have taken their portion of the property, the remaining portion of the property will be divided among the residuary.

  3. The term "Distant Kindered" refers to relatives by blood who are neither sharers nor heirs of the estate.

  1. Sharers

There is a total of 12 Sharers, and their names are as follows:

  1. Husband, (relations by the affixing of marriage)

  2. Wife, (relations by the affixing of marriage) (relations by affixing of marriage)

  3. Daughter, (female agnatic descendants)

  4. Daughter of a son (or son's son or son's son or son's son and so on) - She must be at least 18 years old (female agnatic descendants)

  5. The Father, (male ancestors)

  6. The Paternal Grandfather, (male ancestors) (male ascendants)

  7. Mother, (female ascendants)

  8. Grandmother,

  9. Mother, (female ascendants)

  10. Full sister, (female agnatic collaterals)

  11. Consanguine sister, (female agnatic collaterals)

  12. Uterine sister, and (cognatic collaterals)

The share taken by each sharer will vary in certain conditions. 

  • For example, a wife receives one-fourth of the share if the couple does not have any lineal descendants, but only one-eighth of the share if the couple does have lineal descendants.

  • In the event that a husband succeeds to his wife's estate, he is entitled to one-half of the estate if the couple does not have any lineal descendants, but only one-fourth of the estate in any other circumstance.

  • A sole daughter is entitled to one-half of the inheritance. In cases where the deceased had more than one daughter, the surviving daughters will split the inheritance in two-thirds proportions.

Note- If the deceased had sons as well as daughters, then the daughters would no longer be considered sharers but would instead be considered residuaries, and the residue would be divided up in such a way as to guarantee that each son would receive twice as much as each daughter would.

  1. Residuary

In the event that there are no Sharers or if there are Sharers but there is a residue left over after fulfilling their claims, the whole inheritance or the residue, whichever is applicable, is distributed among the Residuaries in the order that is laid out.

I Descendants: i. Son ii. Son’s son

II Ascendants: i. Father. ii. True Grandfather

III Descendants of father: i. Full brother. ii. Full sister. iii. Consanguine brothers. iv. Consanguine sister. v. Full brothers son vi. Consanguine brother’s son vii. Full brother’s sons’ son viii. Consanguine brother’s son’s son

IV Descendants of true Grandfather i. Full paternal uncle ii. Consanguine Paternal Uncle iii. Full paternal uncle’s son iv. Consanguine Paternal uncle’s son v. Full paternal uncle’s son’s son vi. Consanguine paternal uncle’s son’s son vii. Full paternal uncle’s son’s son viii. Consanguine paternal uncle’s son’s son ix. Consanguine paternal uncle’s son’s son x. Male descendants or more remote true grandfathers

  1. Distant Kindred

In the event that there are no shares or residuary, the inheritance is given out to various distant relatives.

If there is just one sharer, and that sharer is a husband or wife, and there is no other connection that belongs to the class of Residuaries, then the husband or wife will receive their whole share, and the rest of the estate will be distributed among Distant Kindred.

Four different categories are considered to be distant kin. These categories are as follows: (1) Descendants of the deceased, other than sharers and residuary; (2) Ascendants of the deceased, other than sharers and residuaries; (3) Descendants of parents, other than sharers and residuaries; and (4) Descendants of ascendants how highsoever other than residuaries.

It is customary for the descendants of the dead to take precedence over the ascendants of the deceased, the ascendants of the deceased to take precedence over the descendants of the parents, and the descendants of the parents to have preference over the descendants of the ascendants.

The following is a list of Distant Kindred comprised in each of the four

classes:

I. Descendants of the deceased:

1. Daughter’s children and their descendants.

2. Children of son’s daughters h.l.s. and their descendants.

II. Ascendants of the deceased:-

1. False grandfathers h.h.s. (a male ascendant however distant between whom and deceased a female intervenes.)

2. False grandmothers h.h.s.

III Descendants of parents:-

1. Full brothers’ daughters and their descendants.

2. Can. brothers’ daughters and their descendants.

3. Uterine brothers’ children and their descendants,

4 Daughters of full brothers’ sons hJ.s. and their descendants.

5. Daughters of the con. brothers tons his, and their descendants.

6. Sisters’ (f, c., or Ut.) children and their descendants.

IV. Descendants of immediate grandparents (true or false):—.

1. Full pat, uncles’ daughters and their descendants.

2. Con. pat. uncles’ daughters and their descendants.

4. Uterine pat. uncles and their children and their descendants.

5. Daughters of full pat. uncles’ son h.l.s and their descendants.

6. Daughters of a con. pat. uncles’ sons hi.s and their descendants.

7. Pat. aunts (f., c., or Ut.) and their children and their descendants.

8. Mat. uncles and aunts and their children and their descendants and descendants of remoter ancestors h.h.s. (true or false). 

For non-Testamentary Succession- Application of Muslim Personal Law (Sharia) Act of 1937.

Testamentary Succession- If a Muslim dies with a valid will, known as "testate," then his or her heirs will be distributed according to the Shariah law that applies to Shias and Sunnis, respectively.

Exception- For Muslims living in West Bengal, Chennai, and Bombay, the Indian Succession Act of 1925 governs the transfer of ownership of real estate. 

 

DISTRIBUTION OF PROPERTY 

There are two ways to distribute property in accordance with the Muslim Law of Inheritance i.e., Per Capita and Strip Distribution

Per Capita- (used in Sunni Law) - Inheritors share equitably in the inheritance of their forebears. The number of heirs determines how much each individual will get.

Per strip- (used in Shia Law)- Each generation, such as the first, the second, and so on, receives a certain portion of the estate.

 

THE DOCTRINE OF REPRESENTATION 

Those who are farther removed from the deceased are disinherited by those who are closest to them under Muslim law. If two people can trace their lineage back to the same ancestor, the one who is physically closest to the ancestor will get the inheritance. Since A is closer to P in generational degree than E is, A will remove E.

Protection of Women's Rights There is no observable difference between men and women, however, women often earn less per hour than men. Because she gets spousal support in the form of Mehr and alimony.

A Muslim widow who does not have any children is entitled to one-fourth of her late husband's estate.

When she has children or grandchildren, she gets one-eighth of her late husband's estate.

Note- A Muslim man's wife forfeits all claims to his inheritance if he marries while ill and dies before they can consummate their marriage. She may inherit till she remarries if her sick husband or wife divorces her and then dies.

Other important Points

The child has a chance to inherit the estate if he or she is born healthy. If a Muslim passes away without a direct descendant, his estate will escheat by the state. According to Islamic law, a Muslim's ability to inherit property is terminated when he marries under the Special Marriage Act of 1954. After death, no Muslim's heirs would be entitled to inherit such a person's possessions under Islamic law. The Indian Succession Act of 1925, rather than Islamic law, governs the transfer of property ownership among Muslims. Section 51 of the Mulla Law on Inheritance states that there is no distinction between inherited and personally earned property.

Download the Muslim Personal Law (Shariat) Application Act, 1937 from here to read more. 

Can Hindu Women Inherit Property From Their Parents?
Property disputes

Can Hindu Women Inherit Property From Their Parents?

Indian Social System Has Historically Been Largely Patriarchal

India like most other countries of the world has traditionally been a conglomeration of various communities, which have practiced and patronized a patriarchal social order. Patriarchal system has unduly benefitted the men at the cost of women. However, that social injustice is being undone gradually under the influence of modernity, democracy and egalitarianism.

The Hindu Succession Act Was Amended In 2005

One aspect of the male-dominated order is that inheritance has largely been patriarchal i.e. only sons can inherit through the father. A major change in this took place when Hindu Succession Act was amended in the year 2005.  

A Hindu Daughter’s Right to Property Takes Shape

In the year 2005, amendments were made in Section 6 of the Hindu Succession Act (HSA) of 1956. This amendment gave substantial equality to the daughters and tried to bring them at par with the sons in a Hindu joint family. It was intended to benefit the Hindu women who made up 80 percent of female population in India.

Also read How Can A Woman Change Her Name In The Aadhar Card After Marriage?

The Supreme Court Order Changed It In A Big Way

As per a landmark Supreme Court order on January 21, 2005, it was made clear that Hindu daughters will be eligible to inherit their parent's property if there were no other legal heir; they would be preferred over other family members in acquiring the property even if the father has not left behind any will.

The court verily ruled that the self-acquired property of a Hindu man shall not pass on by the practice of survivorship but by virtue of succession and women successors—wife and daughter—are eligible to inherit or succeed even before 1956, the year when the Hindu Succession Act was made into a law.

What this implied was, “In the cases, even those before 1956, where girls and women were not being given succession by virtue of survivorship, they will now become entitled to such a succession. This brought a lot of relief to female heirs, various law experts had stated.

Among other things, the court observed the right of an only daughter to acquire the property of her father who died intestate before the Hindu Succession Act was enacted.

What did the court order say?

If a Hindu man dies intestate (without writing a will) and he has some self-acquired property or say he has a property which was obtained in the division of a coparcenary or a family property, this would pass on by inheritance and not survivorship. Consequently, the daughter of such a deceased man would inherit and acquire this property vis-à-vis other survivors (like the sons/daughters of the brothers of the deceased man), the 51-page order of the court had stated.

The bench had added that if a Hindu woman dies without writing a will and without any legal child (son or daughter) then the property that she acquired from her father or mother would pass on to the successors of her father. On the other hand, the property that she acquires from her husband or father-in-law would pass on to the successors of her husband.

Daughters Get Their Due

Further, in January 2022, the Supreme Court, through its decision in Arunachala Gounder (deceased) v. Ponnuswamy’s, put the last nail on male superiority while setting the provision for the division of Hindu ancestral property. The Supreme Court removed the confusion by declaring that daughters will have inheritance rights at par with the sons from the properties acquired from fathers, grandfathers and great-grandfathers ever since the codification of the law in 1956.

Also read Know About Daughter's Rights in Mother's Property.

After these legislations, daughters are now treated equally with tbe sons of coparceners. They are also given equal coparcenary rights in the property of their father from their birth itself. Also, daughters are now coparcener all through their life, whether their father is alive or not. Thus, even if they get married it won’t affect the rights given to them by any amendment, and so they will continue to be part and parcel of their father’s Hindu Undivided Family (HUF) even post-marriage.

Daughters Substantially At Par With Sons

Daughters are now entitled to ask for the division of their father’s coparcenary property. They can claim their equal share at par with other siblings & other coparceners which cannot be denied to them on the grounds of an oral family settlement. Once they acquire a part in the coparcenary property, a woman coparcener can bequeath her share in the HUF property under her Will to any other beneficiary she chooses.

Conclusion: 

In Hindu law, women have the right to inherit property from their parents. The Hindu Succession Act, 1956, which applies to Hindus, Buddhists, Jains and Sikhs, lays down the rules for inheritance of property. The Act applies to both self-acquired property as well as ancestral property. The Act was amended in 2005 to give daughters equal rights in the ancestral property of their parents. This means that daughters have the same rights as sons in the ancestral property of their parents, irrespective of whether they were born before or after the amendment. Additionally, daughters also have the right to inherit their father's property if he dies intestate (without leaving a will). The Act has thus made significant progress towards ensuring gender equality in matters of inheritance.