How to distribute share between family members
nikhil kumar
(Querist) 19 May 2012
This query is : Resolved
1.Our property is in the name of grandfather and he has died so tell me how to distribute shares among 4 sons among them elder son has also died.what is the procedure for such distribution and how to distribute share of died son.
2.what is procedure for recovery of lost title deed of house.
Nadeem Qureshi
(Expert) 19 May 2012
Dear Nikhil Kumar
1. as you inform that there is 4 sons in which 1 has been died, in this property there will be 4 equal share 3 for alive sons and one for died son's heirs.
2. which type of procedure do you want to ask? your query is not clear.
Feel free to call
A V Vishal
(Expert) 19 May 2012
General rules of succession in the case of males. - The property of a male Hindu dying intestate shall devolve according to the rules set out in this chapter:
(a) firstly, upon the preferential heirs, being the relatives specified in Class I of the Schedule;
(b) secondly, if there is no preferential heir of Class I, then upon the preferential heirs being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no preferential heir of any of the two classes, then upon his relatives being the agnates specified in Section 12; and
(d) lastly, if there is no agnate, then upon his relatives being the cognates specified in Section 13.
A) Heirs In Class I:
i. The adopted children (sons or daughters) are also to be counted as heirs.
ii. The children born out of void or voidable marriages are considered to be legitimate by virtue of Section 16, and hence they are entitled to succession.
iii. The widow is also entitled to property along with the other heirs and in case there is more than one widow, they will inherit jointly one share of the deceased’s property, which is to be divided equally among them.
iv. The widow is entitled to inherit from her deceased husband’s property even if she remarries after his death.
v. The widow of the predeceased son will inherit with the other heirs. However, her right along with rights of the children of the predeceased son will exist to the extent of the share of the predeceased son, had he been alive. However, if she remarries before the death of the intestate, then she is not entitled to the property.
vi. The daughter inherits simultaneously along with the other heirs in her individual capacity. Moreover, even if she is married, she is entitled to such property.
vii. The mother also succeeds to her share along with other heirs by virtue of Section 14. It has been held in Jayalakshmi v. Ganesh Iyer that the unchastity of the mother is no bar as to her inheriting from her son. Even if she is divorced or remarried, she is entitled to inherit from her son. Here the term mother also includes an adoptive mother. Moreover, if there is an adoptive mother, the natural mother has no right to succeed to the property of the intestate. A mother is also entitled to inherit the property of her illegitimate son by virtue of Section 3(i)(j).
(B) Heirs In Class II:
i. All heirs in Class II take cumulatively and not simultaneously, i.e. they succeed in the order of Entries I to IX, as held in the case of Kumuraswami v. Nanjappa . An heir in the higher entry excludes all the heirs in the lower entries.
ii. The father in Entry I includes an adoptive father. However, a father is not entitled to any property from the illegitimate son as opposed to the mother. However, he is entitled to share from children born out of void or voidable marriage under Section 16. Also, a step mother is not entitled to inherit from the step son.
iii. All brothers and sisters inherit simultaneously. Here the term ‘brother’ includes both a full and a half brother. However, a full brother is always preferred to a half brother (according to Section 18). Uterine brother is not entitled to the intestate’s property. However, when the intestate and his brother are illegitimate children of their mother, they are related to each other as brothers under this entry.
(C) Agnates:
A person is said to be the agnate of another if the two of them are related by blood or adoption entirely or wholly through males [Section 3(1)(a)]. What is to be noted is that agnates of the intestate do not include widows of lineal male descendants because the definition of agnates does not include relatives by marriage but only relatives by blood or adoption. Since these widows would be relatives by marriage hence they will not fall under the definition of agnates and hence, they will not be entitled to inherit in this capacity.
Moreover, there is no limit to the degree of relationship by which an agnate is recognized. Hence, an agnate however remotely related to the intestate may succeed as an heir. Also, this relationship does not distinguish between male and female heirs. There is also no distinction between those related by full and half blood. However, uterine relationship is not recognized.
(D) Cognates:
A person is said to be the cognate of another if the two of them are related by blood or adoption, but not entirely through males [Section 3(1) (c)]. It does not matter if the intervention in the line of succession is by one or more females. As long as there is at least one female intervening, it is a cognate relationship. As in agnate relationship, cognate relationship is also not based on marriage and only on blood or adoption. Hence widow or widowers of those related by cognate relationship do not fall under this category and hence they are not entitled to succeed on this ground.
Section 9. Orders 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.
Section 9 explicitly points out the order of succession between the Class I and the Class II heirs and also among the Class II heirs interse.
According to this Section, Class I heirs may be termed as preferential heirs of the intestate because the property first devolves upon them on the death of the intestate. All the Class I heirs succeed simultaneously and there is no question of any preference or any priority among them. However, when there is no Class I heir, the property devolves upon the Class II heirs enumerated in the Schedule in the nine Entries.
However, there is one basic distinction between the Class I and the Class II heirs. While all the heirs in Class I inherit the property simultaneously, each of the entries in Class II constitute distinct and separate groups of heirs. Heirs in higher entries inherit in priority, but there I no such concept of priority among the heirs in Class I. For example, if a Hindu male dies intestate leaving behind his widow, two sons, son of a predeceased son, widow of another predeceased son, two daughters and son of a predeceased daughter, all of them will inherit simultaneously because all of them are heirs in the Class I of the Schedule. However, if another Hindu male dies intestate leaving behind his sister and his brother’s son, the sister being an heir in Entry II of Class II will get preference over his brother’s son who is an heir in Entry IV of Class II.
Section 10. Distribution of property among heirs in Class I of the Schedule.- The property of an intestate shall be divided among the heirs in Class I of the Schedule in accordance with the following rules:
Rule 1- The intestate’s widow, or if there are more widows than one, all the widows together, shall take one share.
Rule 2- The surviving sons and daughters and the mother of the intestate shall each take one share.
Rule 3- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.
Rule 4- The distribution of the share referred to in Rule 3-
i. among the heirs in the branch of the pre-deceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions; and the branch of his predeceased sons gets the same portion;
ii. among the heirs in the branch of pre-deceased daughter shall be so made that the surviving sons and daughters get equal portions.
Sections 8 and 9 explicitly declare the law that the preferential heirs enumerated in Class I take simultaneously and to the exclusion of all other heirs in Class II or otherwise. The Sections do not mention any priority among them, but it nowhere follows that every individual heir who succeeds as a heir in Class I is entitled to an equal share of the property along with other heirs of the Class. The computation of the share of each is done in accordance with Section 10 which may constitute the Statute of Distribution applicable to heirs in Class I. It should also be noted that the Act tries to put the males and the females on equal footing. So it allots the shares to the males and the females pari passu.
The object of Section 10 is to deal with the amount of shares each person will be entitled to when there are more than one to inherit simultaneously. The widow, the son, the daughter and the mother will inherit to the property. However, this does not mean that each one of them will get 1/4th of the property. The four rules given in this Section are explanatory to the extent of understanding how much share each one will get.
The rules are:
1) The widows, if there are more than one, shall take together only one share and [read with Section 19(b)] inherit that share equally as tenants-in-common and not joint tenants.
2) When there are more than one son, each son will get a share and similarly each daughter will get a share and mother will also get a share. Thus this is based on the Principle of Equalization.
3) If there are sons and daughters of a predeceased son or a predeceased daughter, they shall be entitled to take together a share of the property of their father or mother as the case maybe, and divide them equally among themselves. The family of the predeceased son would be entitled to one part that the predeceased son would have been entitled to, had he been alive. Same thing applies to a predeceased daughter. Thus these heirs succeed to the intestate’s property not as per capita but as per stripe.
4) Rule 4 is in the nature of a corollary to Rule 3. It states that if there is a widow of a predeceased son of a propositus, she will take the share of the predeceased son equally with her sons and daughters.
The four rules in Section 10 are to be read in consonance with Section 19 which gives the two basic rules in case there is more than one heir succeeding to the property of the intestate. The rules are:
(a) save as otherwise expressly provided in the Act, per capita and not per strip.
(b) as tenants-in-common and not as joint tenants. This is subject to any express provision to the contrary.
Section 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.
This Section provides that when there are more than one heirs in one entry of Class II, they shall inherit equally. For example, Entry III contains four heirs:
(a) the daughter’s son’s son
(b) the daughter’s son’s daughter
(c) the daughter’s daughter’s son
(d) the daughter’s daughter’s daughter. Thus according to this Section, they all share equally. It should be noted that the legislation does not lay down any rule of discrimination between any male or female. If two heirs are enlisted in the same entry, then irrespective of their sex, they share equally. All the heirs in each one of the entries stand aequali jura and take per capita subject to the only exception that full blood is preferred over half-blood.
In the case of Arunachalathammal v. Ramachandran , it was contended that the different heirs mentioned in one entry (in this case Entry I of Class II) are subdivisions of that particular entry and they do not inherit simultaneously but here again there is a question of preference i.e. the first subdivision inherits and then in its absence, the later. The question arose because there were, in his case, one brother and five sisters of the intestate and no other heir and the brother contended that in a brother being in subcategory (3) of entry I, was to be preferred over sister who was in subcategory (4) of entry I and thus he was entitled to the full property. However the same was negated and it was held that all heirs in an entry inherit simultaneously and there is no preference to an heir in a higher subcategory within an entry to an heir in a lower subcategory in the same entry. Thus we find that the equality is between every individual heir of the intestate and not between the sub-division in any particular entry. In fact, the court went on to say that there were no subdivisions in any entry in Class II. They were just roman numerals representing the heirs in the entry.
Section 12. Order of succession among agnates and cognates.- The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder:
Rule 1- Of two heirs, the one who has fewer or no degrees of ascent is preferred.
Rule 2- Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degree of descent.
Rule 3- Where neither heir is entitled to be preferred to the other under Rule 1 or 2, they take simultaneously.
This Section deals with the order of succession among agnates and cognates. Agnates come within the scope of Section 8(c) whereas cognates come within the scope of Section 8(d). The question of succession of cognates come only when there are no cognates and the question of succession of agnates and cognates come only when there are no heirs in Class I and Class II.
Rule 1 lays down that out of two agnates or two cognates as the case maybe, the one with the fewer or no degree of ascent shall be preferred. Rule 2 lays down that where the degree of ascent is the same or none, the one with fewer or no degree of descent shall be preferred. Rule 3 lays down that in case of a tie even after applying Rules 1 and 2, they shall take simultaneously. In accordance with the above three rules, the agnate and cognate relationship maybe categorized as follows:
Agnates:
(a) agnates who are descendants, for example, son’s son’s son’s son and son’s son’s daughter.
(b) agnates who are ascendants, for example, father’s father’s father and father’s father’s mother.
(c) agnates who are collaterals, i.e. who are related to the intestate by degrees of both ascent and descent, for example, father’s brother’s son and father’s brother’s daughter.
Cognates:
(a) cognates who are descendants, for example, son’s daughter’s son’s son and daughter’s son’s son’s son.
(b) cognates who are ascendants, for example, father’s mother’s father and mother’s father’s father.
(c) cognates who are collaterals, i.e. who are related to the intestate by degrees of both ascent and descent, for example, father’s sister’s son and mother’s brother’s son.
In both the cases, relatives (both agnates and cognates) falling in a higher subcategory shall be preferred to a lower subcategory i.e. descendants shall be preferred over ascendants who in turn shall be preferred over collaterals.
Adv.R.P.Chugh
(Expert) 19 May 2012
Mr.Kumar,
The sons each get entitled to 1/4th in absence of other class I legal heirs. The predeceased son's branch (children) take equally within his 1/4th.
As regards Lost Title Deeds - a certified copy can be obtained by an application made to the Sub-Registrar.
Good Luck !
VENKATESH HEGDE
(Expert) 19 May 2012
Dear Mr Vishal, dont paste the whole act/ section. your answer should be convince the client. Try to answer simply along with the main section only.Agree with Mr Bharat.
R.K Nanda
(Expert) 19 May 2012
I agree with reply of expert Bharat Chugh.
A V Vishal
(Expert) 19 May 2012
Mr Hegde, I think I don't require your suggestion on how I answer, it is my personal voilition I think that is sufficient for you
nikhil kumar
(Querist) 19 May 2012
what we have to do for making distribution.
ashutosh mishra
(Expert) 19 May 2012
If there is consensus among all heirs then a partition scheme can be prepared in an agreed manner having due regard to equitable use and each sharer can draw a partition wall on his allotted share separating the same in manner so that one can not enter other's share.This may go as oral partition,next after which a memorandum of partition along with a site plan can be drafted which shall not require any registration if it's language speaks of a memorandum of partition already taken place.
In case partition it self is decided between all NOT by ORAL but BY A DEED then such a PARTITION DEED shall legally be required to be registered paying adequate stamp duty as per law of state where property is.
VENKATESH HEGDE
(Expert) 19 May 2012
Dear Mr.Vishal,if it is harsh really i am very sorry , please if you dont mind, My concern is only regarding that client . As a legal professional we understand the language .If a common person does not understand this all definition .we try to make a simple ans that he should understand the things .Please don't feel bad :)
malipeddi jaggarao
(Expert) 19 May 2012
I agree with the advice or Mr.Bharat which is nothing but condensed version of Mr.Vishal's advice. Thanks to both of them - one for elaborate reply and the other for making the client to understand in brief.
As regards distribution of intestate property, you all have to make partition of properties and a partition deed is to be got prepared and registered. Any advocate in your local area will do this work. For missed document, if you have document number, year and where it was originally registered, you can apply for certified copy of the document. If there is no such document at all, you can narrate this fact in the partition deed and you can establish ownership of the intestate person by taking extracts from municipal/village records where the property tax is being, electricity bills etc.
Shonee Kapoor
(Expert) 20 May 2012
I endorse the views of Ld. Chugh as well as supplementary answer provided by Ld. Mishra.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
K.K.Ganguly
(Expert) 21 May 2012
1) Apply for certified copy of the Title Deed from the local Registration Office,
2) Discuss with all the heirs of the property & make a Partition Deed wherein all the 4 brothers will have equal share and the heirs of the demised brother will get equal share of his portion of 1/4th share of the whole property.The partitions should be well defined, well demarcated & registered to avoid any future problem.
nikhil kumar
(Querist) 22 May 2012
how to distribute floors including terrace
among family members of immovable property.
