Unmarried sister harshment
(Querist) 12 December 2019
This query is : Resolved
I had two sisters one is married & another one in unmarried (40 years).i was only one son . recently my father died. when he was alive harsh him and get some property on her name with gift deed.after my father expired now she starts to harsh me .and also asks her share in another house.can she file partition suit with the help of my mother and another sister(married).according to muslim law it is possible.Give me advice
KISHAN DUTT KALASKAR
(Expert) 12 December 2019
Please see the following.
Under Muslim law, the concept of ancestral and self-acquired property is not recognised.
As long as the person is alive, the property owned by him is his absolute property and no right of any legal heirs accrues until his death. Upon his demise, the legal heirs become entitled to a definite fraction of the estate of the deceased. Under Muslim law, distribution of property can be made in two ways, i.e. per capita or per strip distribution for sunnis and shias respectively. The quantum of their inheritance would depend upon the branch and the number of persons that belong to the branch.
Under Muslim laws, the right to claim inheritance may be exercised during the lifetime of the person claiming such right.
The rights of the person living in the property for thirty years vis-à-vis that of persons who have not claimed any right to the property would have to be examined in light of the specific facts of the case and the principles governing the Muslim law in India.
Rules Governing Inheritance of Property under Muslim Law
Under the Indian legislative scheme, the rules that govern inheritance under the Muslim law depend on the kind of property involved. In cases of Non testamentary succcession, the Muslim Personal Law (Shariat) Application Act, 1937 gets applied. On the other hand, in case of a person who dies testate i.e. one who has created his will before death, the inheritance is governed under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis. In cases where the subject matter of property is an immovable property which is situated in the state of West Bengal or comes within the jurisdiction of Madras or Bombay High Court, the Muslims shall be bound by the Indian Succession Act, 1925. This exception is only for the purposes of testamentary succession.
It is noteworthy that the Muslim law does not make any strict distinction between any two or more type of properties such as movable and immovable, corporeal and incorporeal etc. Since there is no such distinction between different kinds of properties, therefore, on the event of death of a person, every such property which was within the ambit of ownership of the deceased person shall become a subject matter of inheritance. The amount of property that shall become the subject matter of inheritance and is made available to the legal heirs to inherit shall be determined after making certain appropriations. Such appropriations may include expenses paid in lieu of funeral, debts, legacies, wills etc. After making all these payments, the left over property shall be termed as the inheritable property.
Principles governing rules of inheritance of joint or ancestral property
Unlike Hindu law, there is no provision of distinction between individual i.e. self acquired or ancestral property. Each and every property that remains within the ownership of an individual can be inherited by his successors. Whenever a Muslim dies, all his property whether acquired by him during his lifetime or inherited from his ancestors can be inherited by his legal heirs. Subsequently, on the death of every such legal heir, his inherited property plus the property acquired by him during his lifetime shall be transferred to his heirs.
The principle of Hindu law of inheritance of Janmaswatvad does not find place in the Muslim law of inheritance. The question of inheritance of property in Muslim law comes only after the death of a person. Any child born into a Muslim family does not get his right to property on his birth. In fact no such person holds becomes a legal heir and therefore holds no right till the time of death of the ancestor. If an heir lives even after the death of the ancestor, he becomes a legal heir and is therefore entitled to a share in property. However, if the apparent heir does not survive his ancestor, then no such right of inheritance or share in the property shall exist.
Raj Kumar Makkad
(Expert) 12 December 2019
Judge Sab! An innocent querist has asked his innocent problem and he wants his direct reply and do not want to read comparison of Hindu or Muslim law of succession.
In the given problem, sisters shall get 1/2 share (joint) of their brother but prior to that 1/8th share shall go to their mother. I presume that parents of your father have already expired. The gift-deed can also be got challenged by you as a Muslim cannot gift more than 1/3 of his property without the consent of other legal heirs after deducting the expenses of funeral.
Sudhir Kumar, Advocate
(Expert) 13 December 2019
"can she file partition suit with the help of my mother and another sister(married)"
YES SHE CAN FILE EVEN WITHOUT THEIR HELP[
Raj Kumar Makkad
(Expert) 14 December 2019
Yes. She can even independantly file a civil suit seeking partition and possession.
T. Kalaiselvan, Advocate
(Expert) 30 December 2019
As rightly pointed out by experts above, the daughters are entitled to 1/2 share to one share that the son is entitled as p[er Muslim Personal law.
Even if she goes to court she will get a share only to this ratio, if he is not agreeing for an amicable and mutually agreed partition then you may allow her to go to court where you can challenge her claim as per law.