Property issue - interpretation of law

This query is : Resolved 
 


Querist : Anonymous (Querist)
04 December 2020

Dear Sir / Madam,

My Brother name B died in April 2017. B was a bachelor and left a property without a will.

Our parents died in 1990.

In total we were 4 brothers and 3 sisters, out of which 2 brothers and 2 sisters are alive.

One brother and sister died in 2005. My dead sister has 2 children and my dead brother has 3 children.

Please tell me know whether 5 children of my deceased brother and sister are entitled to claim the property of my brother who died in 2017.

Thank you.


kavksatyanarayanaOnline (Expert)
04 December 2020

As he was a bachelor, the property shall be divided by 4 brothers and 3 sisters. And the children of the deceased brother have right over his father's share and likewise, the children of the deceased sister have right over her mother's share.


Querist : Anonymous (Querist)
05 December 2020

How can a brother and sister who died prior to 2017 be a legal heir of a brother who died in 2017?

Please let me know the relevant section or ruling from where this thing flows.

Rajendra K Goyal Online (Expert)
05 December 2020

It seems there is no class I and father (class II) legal heirs of the deceased. In such case property would be inherited by brothers and sisters.


P. Venu Online (Expert)
05 December 2020

Any suggestion depends upon the personal law applicable. If a Hindu, provisions of Hindu Succession Act apply. Provisions of Section 8 and 9 would be relevant:

8.General rules of succession in the case of males.—The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter—
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.

9. Order of succession among heirs in the Schedule.—Among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.

The Schedule to the Act is follows:

HEIRS IN CLASS I AND CLASS II
CLASS I
Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre- deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son; son of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son.

CLASS II
I. Father.
II. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister.
III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4) daughter’s daughter’s daughter.
IV. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s daughter.
V. Father’s father; father’s mother.
VI. Father’s widow; brother’s widow.
VII. Father’s brother; father’s sister.
VIII. Mother’s father; mother’s mother.
IX. Mother’s brother; mother’s sister.

In the present case, there are no Class I heirs. Hence property has devolved upon Class II heirs.

Provisions of Section 11 deals with distribution of property among Class II heirs -


11. Distribution of property among heirs in class II of the Schedule.—The property of an intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they share equally.

There is no Class II legal heir belonging to the first entry. Hence the property has devolved upon the available heirs of the second entry i.e. the brothers and sisters alive at the time of death of the unmarried brother.

As could be seen, the children of the deceased siblings constitute only the fourth entry and hence they are not entitled to succeed.


Querist : Anonymous (Querist)
05 December 2020

Hello Mr. Venu, Can you please let me know the specific ruling basis which legal heir can only be brother sister alive at the time of death of unmarried brother.

P. Venu Online (Expert)
05 December 2020

What is the necessity of any ruling when the latter of law is so explicit?


Querist : Anonymous (Querist)
05 December 2020

I completely agree with you Mr. Venu but we are getting different opinions from several lawyers. Therefore if you could please help with any relevant ruling.

Isaac GabrielOnline (Expert)
05 December 2020

Exper Mr Venu has exhastlt analysed and given specific and unequivocal answer. Though lawurs differ which is inevitale, you can rely on the correct advice above.

Dr J C VashistaOnline (Expert)
06 December 2020

Very well analysed and advised by expert Mr. P Venu, I agree and appreciate his acumen.
Different succession laws apply for each case.
It is advisable to contact and consult a local prudent lawyer for better appreciation of facts/ documents and professional guidance.

Rajendra K Goyal Online (Expert)
06 December 2020

For most suitable ruling applicable in your case, contact local lawyer.



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