Under Hindu Law, brother and sister are at par when it comes to the devolution of property of a father dying intestate.
When a Hindu male dies intestate (without leaving a will), his property devolves upon the legal heirs as per Section 8 of the Hindu Succession Act, 1956. The legal heirs are as follows:
- Class I heirs
- Class II heirs (if no one in class I)
- Agnates (if no one in class II)
- Cognates (if no one in agnates)
Class I heirs as mentioned in the Schedule of the Act are:
- 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
There are 16 class I heirs. Eleven are females, and 5 are males.
Rules for distribution of property among brother and sister (both are class I heirs):
- Class, I heirs get their share simultaneously and to the exclusion of others. As per the rules, son and daughter (brother and sister) are entitled to an equal share in the property.
e.g. a father dies leaving behind a mother, a widow and one son and two daughters, his property would be divided into five equal parts, and each of these legal heirs will get a one-fifth share.
Stepson or stepdaughter: Daughter and son must be natural or adopted children. Stepchildren are not included in the definition of son and daughter under the Act.
- Children of predeceased son or daughter will take between them one share, e.g. If the daughter is predeceased and has two children, then in the above example, the property is divided into five parts, and one-fifth share of the deceased daughter will be shared further by these two children equally.
Ancestral or self-acquired property
The daughter (sister) has equal right as a son (brother) in the ancestral as well as the self-acquired property of the father.
Under Hindu law, there is a concept of coparcenary. It is a small unit within a joint Hindu family and consists of male lineal descendants’ of four generations with the eldest male member as the head and his male lineal descendants as coparceners. After the amendment of 2005 in the Act, the daughters are considered as coparceners and have equal right in the ancestral property as a son.
Marital Status: Marital Status of the daughter (sister) makes no difference.
Date of birth of a daughter (sister): The Amendment of 2005 came into effect on 09.09.2005. The daughters born before or after this date are considered as coparceners.
If the daughter is not living on 09.09.2005, her children are entitled to get a share in ancestral property.
If the father is not living on 09.09.2005, the daughter cannot seek partition of ancestral property.
Testamentary succession: However, in case of self-acquired property of the father, he can make a will of the same as per his desire, and the property bequeaths to the person named in the will.
In the case of ancestral property, a Will can be made by a father once he has acquired his share.
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