Share of a brother in deceased brother’s property

Among family
members, to ascertain the right of one member in the property of another and
distribution of property accordingly is not an easy task. It is always better
to get legal advice for the same.

We decided
to have a write up in one such matter and have tried to address the queries
received by us.

Whether a brother has a right in his
deceased brother’s property?

Yes, he has.
It depends upon the personal law and statutory law governing the parties. It is
different in Hindu Law, Muslim Law and the Indian Succession Act.

What is the share of a brother in deceased brother’s property under Hindu Law?

Under Hindu
Law, the share is decided as per the Hindu Succession Act (HSA) and the nature
of the property. 

• If the property is ancestral, both the brothers have an equal share in the same being coparceners. The share of the coparceners in the ancestral property keeps on fluctuating till the time partition is effected.
• If the property is ancestral but has already been partitioned before the death or it is self-acquired property of the brother, devolution is as per section 8 of the Act.

Read Partition of Jointly Held Property in India

What is the position of the brother
as per Section 8 of the Act?

• As per Section 8 of
  the Act, brother is a Class II heir, and he gets the share in deceased
  brother’s property if no one is present in Class I heir and father is not alive.
• Class II heirs are
  divided into nine entries and brother falls in Entry II as described below:
  • Entry
    I –     Father
  • Entry
    II-     Son’s daughter’s son, Son’s
    daughter’s daughter, brother and sister
• There are a total of nine entries.
• Entry I gets
  preference over Entry II and so on. Within the entry, each of the heirs
  receives an equal share.

What is the share of a brother as per
HSA?

• Brother
  is entitled to an equal share in the property with other class II heirs in
  Entry II. There are four heirs in Entry II.
• If A dies and he has a brother B and
  a sister C only. His property gets divided into two equal parts.
• If
  all the four legal heirs are present, the property gets divided into four equal
  parts.

What is the share under Muslim Law?

• Legal heirs under Muslim law are
  divided into sharers and residuary.
• Brother is a residuary heir.
  Therefore, the share of a brother in the deceased brother’s property depends
  upon the residue of the property left after sharers have got their share.

What is the position of a brother
under Indian Succession Act?

Brother of a
deceased brother inherits

• if the father is not alive and
• The deceased brother has left no lineal descendant, i.e. direct
  descendant. A’s child, and A’s child’s child is lineal descendants of A.

What is the share of a brother as per
Indian Succession Act?

• If the mother of
  the deceased is living and there are surviving brother and sister and children of predeceased brother
  and sister, they all inherit equally. (Children of predeceased brother/sister
  inherit one share of their deceased parent among themselves)
• A has died,
  survived by mother M and a
  brother B and two children C and D of a predeceased sister. Here M will get one
  third, B will get one third, and C and D will share equally the remaining
  one-third share.

• If the mother is
  not living, then the property of the deceased goes to surviving brothers and sisters and children
  of predeceased brother /sister. All share equally with children of predeceased
  sharing one share of their parent equally among themselves.