If you are stuck in such a situation, here is what to do.

Mr. Sameer Sharma’s father, Mr. Anil Sharma, passed away recently after a brief but severe illness. Mr. Sharma died without leaving a will, a situation known as dying intestate. While going through his late father’s financial documents, Sameer discovered a significant issue. While some Fixed Deposits correctly named his mother, Mrs. Geeta Sharma, as the nominee, the primary savings account had no nominee appointed. This complicates the process of accessing the funds.

The core problem is that Sameer has an elder brother, Rohan, who has been missing for over fifteen years. Rohan, who was an adult at the time, had been dealing with some personal struggles and left home voluntarily, severing all contact with the family. Hoping for his eventual return, his parents never filed a missing person’s report with the police. In addition to the bank accounts, there is a small ancestral property in a rural town registered in the late Mr. Sharma’s name. Sameer is now facing legal hurdles in settling his father’s estate due to the ambiguity surrounding his missing brother’s status, who is legally considered a Class I heir.

Advice in such cases

Navigating the legal aftermath of a loved one’s death is challenging, especially with added complications like a missing heir. The primary goal is to legally establish the status of all heirs to ensure a smooth transfer of assets.

• Secure All Documents: Immediately gather all essential documents, including the death certificate of the deceased, property ownership papers, bank passbooks, FD receipts, and identity documents of all known family members.

• Understand the Legal Standing: Since there is no will, the assets will be divided among Class I heirs as per the Hindu Succession Act, 1956. This includes the spouse, children, and mother of the deceased. The missing brother is, by law, an equal heir.

• Presumption of Death: The most critical step is to legally establish that the missing sibling is presumed dead. Indian law provides a mechanism for this when a person has not been heard of for seven years.

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

This case involves a combination of succession law and evidence law.

• The Indian Succession Act, 1925: This Act governs the procedure for obtaining a Succession Certificate or Letter of Administration, which is necessary to claim movable assets like bank balances and securities when there is no nomination.

• The Hindu Succession Act, 1956: This law dictates how the property of a Hindu male dying intestate is distributed. The property devolves upon Class I heirs, which in this case would be the deceased’s wife (Mrs. Geeta Sharma), his son (Sameer), and the missing son (Rohan).

• Sections 108 and 109 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA): Section 108 is crucial here. It states that when it is proved that a person has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. This allows a court to make a declaration of civil death.

If you are the complainant

As the person initiating the legal process to settle the estate, you are effectively the complainant or petitioner. Your actions will drive the entire process forward.

• File a Suit for Declaration: Your first legal step should be to file a suit in a competent civil court seeking a declaration that your missing brother is civilly dead, as per Section 108 of the BSA. You will need to provide evidence and witness testimony to support this claim.

• File for a Succession Certificate: Simultaneously or subsequently, you and your mother will need to file a petition for a Succession Certificate in court. This certificate will grant you the authority to access the bank accounts and other movable assets of your late father. The court will require you to publish a notice in newspapers as part of this process.

• Provide Indemnity to the Bank: Banks are often cautious. Even with a Succession Certificate, they may ask for an indemnity bond to protect themselves from any future claims, should your brother reappear.

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

In this context, the family can be seen as victims of a difficult and unforeseen circumstance. The focus should be on mitigating emotional and financial distress through proper legal channels.

• Act Methodically: The situation is emotionally draining. It is important to approach the problem systematically. Create a checklist of tasks and documents required to avoid feeling overwhelmed.

• Protect Existing Assets: While the non-nominated assets are frozen, ensure that assets with clear nominations (like the FDs in the mother’s name) are secured. Inform the bank of the death and follow their procedure for claim settlement for the nominated assets.

• Prepare for a Lengthy Process: Understand that court procedures take time. Be patient and maintain regular communication with your lawyer for updates.

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

Since this is primarily a civil matter concerning inheritance, the police have a very limited role. As no missing person’s complaint was filed when the brother disappeared, there is no active police investigation. However, you may need to interact with the police now. You could file a missing person’s report now, even after all these years. The police will conduct a basic, non-cognizable report (NCR) inquiry. The report generated from this inquiry, stating that the person remains untraceable, can serve as a piece of supporting evidence in your civil suit for the declaration of death. Their role is not to investigate a crime but to officially document the person’s disappearance, which aids the court proceedings.

FAQs people normally have

Here are some common questions that arise in such situations:

• What if my missing brother returns after the assets are distributed?
  This is a significant legal risk. If the court has declared him civilly dead and the property is divided, his return can lead to complex legal challenges. He would have the right to claim his share of the inheritance. The indemnity bond provided to the bank is for this very reason. A good lawyer can advise on how to structure the distribution to mitigate such future risks.

• Can the bank release the funds without a court order?
  For small amounts, some banks may have a discretionary policy to release funds to legal heirs upon submission of an indemnity bond and other documents. However, for substantial amounts, they will almost certainly insist on a Succession Certificate from a court to protect themselves from liability.

• Does the ancestral property follow the same rules?
  Yes, the ancestral property will also be divided among all Class I heirs. To sell or transfer the title of the property, you will need the court’s declaration regarding your missing brother. Without it, you cannot give a clear title to a potential buyer.

What evidence is required?

To succeed in your court case, you will need to present compelling evidence. The burden of proof lies on you to show that your brother has not been heard of for seven years.

• Primary Documents: Your father’s death certificate, your and your mother’s identity proofs, and documents proving your relationship with the deceased and the missing sibling (like birth certificates or school records).

• Asset Documents: Bank statements, passbooks, property deeds, and any other documents related to the assets in question.

• Affidavits and Witness Testimony: Sworn statements (affidavits) from family members, relatives, neighbours, and old family friends testifying that they have had no contact with or news of your brother for more than seven years.

• Proof of Search: Any evidence, even informal, of attempts to locate him. This could include correspondence, emails, or social media search records.

• Public Notice: As part of the court process, you will be required to publish a notice in local and national newspapers calling for information about your brother. A copy of these publications is crucial evidence.

How long will the investigation take?

This is not a police investigation but a judicial process. The timeline can vary significantly based on the city, the court’s workload, and any complexities that may arise. The process involves two main parts:

• Suit for Declaration of Civil Death: This can take anywhere from 6 months to 2 years, as it involves presenting evidence, witness examination, and giving an opportunity for objections.

• Petition for Succession Certificate: This process typically takes between 6 to 18 months. It runs parallel to or follows the declaration suit.

Overall, you should be prepared for the entire legal process to take anywhere from 1.5 to 3 years to reach a final resolution.

Advocate Sudhir Rao, Supreme Court of India