Property Division Among Siblings After Parent's Death

The division of property among siblings can seem confusing and unjust at times, but the law provides clear guidelines for that. In absence of a will, after a parent’s death, the Hindu Succession Act of 1956 becomes applicable for sharing the different shares that the siblings will be entitled to. The article discusses how property can be shared as per the legal system is inherited by a particular sibling. Let’s take a look at how property is divided among siblings after their parent’s death.

Application of the Hindu Succession Act, 1956

Under Hindu Law, it is the Hindu Succession Act that covers the inheritance part when it comes to the devolution of the property after a parent dies without leaving a will. It covers Hindus, Sikhs, Jains, and Buddhists. Section 8 of the Hindu Succession Act of 1956 governs the legal heirs. The legal heirs are divided into four parts, namely, Class I heirs, Class II heirs, Agnates, and Cognates. The property is initially divided among the Class I heirs, and in case no one is on that list then it is divided among Class II heirs, and then Agnates, and then Cognates, if the pattern follows.

Ancestral vs. Self-Acquired Property Distribution

Both sons and daughters have equal rights in both ancestral and self-acquired property of their father, according to the Hindu Succession Act of 1956. Therefore, it is important to understand the rights of children in their father's property. Here are a few scenarios of how the distribution of ancestral and self-acquired property takes place for the children of the deceased father.

• In ancestral property, the property will just be divided among the siblings, and no third person has the right to interfere. 
• In self-acquired property, the property can be shared with a third person as well but in case there is no will made then it would just be the siblings.
• In absence of the acquirement of ancestral property by the father, neither can the father make a Will stating shares of children in ancestral property, nor can the children seek their share in the ancestral property in the father’s will.
• In ancestral property, it is the family who has the entire right over it, but if the Karta of the family wants to gift the property for some pious purposes of charity and religion, then the children cannot seek rights in it.
• In ancestral property, it is divided between the family members, but if it is a legal necessity, benefits family estate, and the Karta has the consent of all the coparceners of the family, the ancestral property can be gifted further as well.

Legal Heirs of Ancestral Property

As mentioned above the legal heirs of ancestral property are governed under Section 8 of the Hindu Succession Act, 1956. The first and foremost deserving legal heirs as per the Schedule of the Act are the Class I heirs, which are 16 in number, with 11 being female and 5 male,

• 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 predeceased daughter of a predeceased daughter
• Daughter of a deceased daughter of a predeceased daughter
• Daughter of a predeceased son of a predeceased daughter
• Daughter of a predeceased daughter of a predeceased son

The Hindu Succession Act, 1956 provides a legal framework for the procedure to claim ancestral property. According to this Act, all individuals who are listed in the Schedule as Class I heirs have an equal right to claim their share in the property of their deceased Hindu male member or father. This means that if you are a Class I heir, you can follow the legal procedure outlined in the Act to claim your rightful share of the ancestral pro

Share of Sons

The sons come under the Section 8 Schedule list of the Hindu Succession Act, 1956, as Class I heirs, making them have an equal share in the property of the father just like other Class I heirs.

Share of Daughters

Initially, under Hindu Law, the inheritance was all related to male members of the family, that is the male lineal descendants were the coparceners. But after the amendment of 2005 of the Act, the daughters are considered to be coparceners as well, making them have the equal right to the ancestral property as a son. 

This amendment came into effect on the date of 09th September 2005. Since then, the daughters who were born before or after the date of 09th September 2005 are considered to be coparceners. Two other scenarios that can happen in relation to the amendment are,

1. Daughter not living - In case the daughter is not living on the date of 09th September 2005, then her children will become entitled to her share in the ancestral property.
2. Father not living - In case the father is not living on the date of 09th September 2005, then the daughter has no right to seek her share in the ancestral property.

Further as per Supreme Court stated in 2022, the daughters have the right to inherit their parents’ self-acquired property as well, that is if they are the absolute owners of that. This inheritance can take place even if the parents of the said daughter passed away even before the codification of the Hindu Succession Act of 1956.

Share of Married Daughters

The marital status of a daughter does not make any difference to the 2005 amendment. The daughter who has been married has full rights to own her share in her father’s property.

Share of Adopted Child

Adopted Child just like other children comes under the category of Class I heirs and hence has all the rights that a biological child has. This makes the inheritance of the adopted child to be equal share just as other children. A few exceptions to the inheritance are,

1. An adopted child cannot seek share in the property if their father has been disqualified from succeeding the property because of some crime they had committed.
2. If the father has changed his religion and the adopted child is following the same religion then in that case the adopted child is not entitled to seek or inherit their share in the ancestral property.

Share of Step Child

Neither the stepson nor the stepdaughter has a right to seek a share in the property of the deceased father. They are not believed to be natural and hence they do not come under the definition of a son and daughter as per the Act, making them illegible to seek their share in the property.

Read More: Inheritance Rights of Stepchildren

Share of Illegitimate Child

For a child to be illegitimate, the child should fall under one of the following categories,

• Children born of void marriages.
• Children born of annulled/voidable marriages.
• Children born of illicit relationships.
• Children born through concubines.
• Children born of a marriage, are not valid for want of proper ceremonies.

As per Section 16 (3) of the Hindu Marriage Act, 1955, children who are illegitimate can only seek property inheritance in their parent’s property and not from other relations.

Share of the Child of a Predeceased Son or Daughter

In case the property is being shared and one of the children is predeceased then their children if existing would be entitled to the share in the property. The inherited property would then be divided equally among them. For example, one of the daughters is predeceased at the time of property sharing, but the daughter has three children, so the share that was of the daughter, would be taken and divided equally among the three children.

Share of A Child who has been declared Criminal 

As per the Hindu Succession Act of 1956, a child who has been proven guilty of serious crimes does not have the right to inherit property and will be disqualified from the inheritance of their parents.

Share of Children of Live-In Couples

As per the 2015 Supreme Court ruling, the children born of live-in relationships are entitled to seek their right to their parent’s self-acquired property under the Hindu Marriage Act, 1955, Section 16. These children though cannot seek inheritance from other relations of their parents and are just limited to self-acquired property.

Share of Property Inherited by Single Women 

In the case where a Hindu female is deceased, and has no husband or children, in that case, the property that was inherited by her from her father’s side would go back to her father’s heirs, and the property inherited from her husband’s side would go back to her husband’s heirs.

Impact of Religion Conversion

After the parent has passed away, and no will has been made by the parent, it is best to not take matters into your own hands and seek professional help by consulting a property lawyer. This way, you won't just be saving your precious bond with your siblings and keeping the harmony, but also all the legal hassle would come down to almost nothing when it would be taken care of by someone else.

Steps to take After the Parent Passes Away

After the parent has passed away, and no will has been made by the parent, it is best to not take matters into your own hands and seek professional help. This way, you won’t just be saving your precious bond with your siblings and keeping the harmony, but also all the legal hassle would come down to almost nothing when it would be taken care of by someone else.

Here are a few ways, which can help you maintain harmony between you all,

1. Liquidate Assets - The easiest way is to liquidate all the assets. Sometimes, one or the other siblings end up arguing over which property or which jewelry would go to whom, as they particularly think that might profit them more. To avoid such a situation, it is best advised to liquidate all the assets, and then split the proceeds. This way it would feel justified to all of the siblings and keep the harmony alive.
2. Mediator’s Help - A mediator can help a lot more than one might think. When some serious issues are being faced by the family members related to the inheritance and family business, it is advised to bring in a mediator and seek professional help. This could help everyone reach a consensus along with maintaining harmony between all.
3. Independent Fiduciary - Usually one of the siblings becomes the fiduciary, but that can again bring up doubt of biases causing problems. So the siblings can decline the appointment as an executor or trustee, hence the other person can become the fiduciary and make decisions related to distributions and parts of the assets. Things that are required to be considered when taking this step are,
   1. In case the siblings are officially named as fiduciaries, they need to formally decline their appointment.
   2. The appointment of a fiduciary should be the mutual decision of all the siblings.
   3. A fiduciary can be another person from the family, a CPA, an attorney, or a bank’s trust department.
   4. This service isn’t free, and hence, it should be considered and discussed once before if the family is willing to pay for the service, and if it is affordable for the current economic status of the family.

Apart from the asset distribution, sometimes there can be some chaos between the siblings even related to household items, so either one can include these in the asset distribution procedure, or you all can just take turns using these items.

Conclusion

To avoid family property disputes, it is important to remember that everyone in the family who falls under the Class I legal heirs list is entitled to an equal share of the property. However, the complications can increase depending on the relationship between the deceased and the person inheriting the property. Despite this, the Hindu Succession Act of 1956 has evolved to include daughters and even recognizes live-in relationships, granting children the right to property and maintenance. It is crucial to handle any disputes over property in a harmonious manner by following the legal procedures, as no property is worth damaging family relationships.

About The Author:

Adv. Pawan Prakash Pathak, Managing Partner at Vidhik Nyay & Partners, specializes in Constitutional Practice in India. After graduating from Pune University in 2017, he founded the firm in 2019 and has since accrued nearly 7 years of legal expertise. He also has considerable experience in handling litigation & and prosecution matters relating to commercial disputes, and civil & criminal disputes & he has represented several highly reputed national & international companies like Dew Point HVAC, Batt Wheelz, SS Engineering, etc, Proto Developers Ltd. He has represented and has argued for 100 + clients & has a wide media coverage for the reported matters. He has regular appearances in the Supreme Court of India, the High Court, National Company Law Tribunal, Debt Recovery Appellate Tribunal, Telecom Disputes Settlement and Appellate Tribunal and Appellate Tribunal for Forfeited Property (ATFP), NCDRC, AFT, CAT, PMLA.