Can other heirs release the parents property in favor of one. parents alive.
Gaz
(Querist) 24 February 2012
This query is : Resolved
Hi! I am Muslim 47. Have One Brother and Sister. My Parents are alive and stay in the flat bought by them in thier name. I stay with them. In internal arrangement, we(bro/sis/parents) have agreed that this Flat will go to me after my Father & Mothers death.
They have file nomination in my favour with the society.
Can my Brother and Saister execute release deed on this property now in my favour ...when the parents are alive.
Can this release deed be used to transfer the flat in my name after the death of my parents.
Adv.R.P.Chugh
(Expert) 24 February 2012
First of all there is no concept of joint family property in Muslim Law, at this point your parents are the sole owners of the property with nobody else having an interest in the same. They can only release their interest if they have it in the first place. They have no interest in the property as on date.
Their and even your right to the property would accrue only on the demise of your parents.
Hence release deed is out of question now - since there is nothing to release.
Even if they an agreement now - claiming that they would not claim a penny out of it - the same would be an agreement void - because of lack of consideration - and hence not enforceable in law. They would always come back for a share and get that after succession opens (after your parents demise) However if get any consideration for such agreement (howsoever minute) then that would be enforceable.
~Would like other experts to enlighten us on this crucial question~
Gaz
(Querist) 24 February 2012
Dear Adv Bharat Chugh, Thanks for your reply which is very convincing.
My Dad & Mom won't Gift/Release it during their lifetime.
My Brother & Sister are ready not to lay their claim on this property beacuse of the verbal settlement.
Can my father make a WILL to this effect. As far as I understand in Muslim Personal Law he can will only 1/3rd of his property.
Adv.R.P.Chugh
(Expert) 24 February 2012
Yes that maximum is 1/3rd without the consent of other heirs...if the heirs consent (which sadly can be obtained only after your parents death) it can be even to the extent of 100 %. Since your parents are not willing to gift it to you, and there is no guarantee that your siblings would tow the same line say 10 years down the line. I would advise you to enter into a Memorandum of Understanding (MOU) with them. Whereby they agree not to stake any claim - infact give their consent on your parents demise, so that the will operates to the 100 % in your favour. If nicely drafted - you'd always have something to bound down your siblings with, but make sure some consideration moves from you in that MOU, so that tommorrow they may be estopped from claiming to the contrary and claiming what they have given up under the agreement.
Raj Kumar Makkad
(Expert) 24 February 2012
In a case before Karnataka High Court in Smt. Ashabi vs Smt. Faziyabi And Ors. (ILR 2004 KAR 3599) "A person who according to Muslim law is an heir of the deceased remains so and gets his legal due. He or she cannot be excluded either by other heirs and survivors of the deceased or even under a specific direction left in that behalf by the deceased himself. One can be excluded from inheritance only under a rule of Muslim law, if applicable in India. It is also well settled that only that relative can be an heir of the deceased who is alive at the moment of the latter's death. A person who died before the deceased cannot be his heir……………….It is a well- recognised proposition of law that the estate of a deceased Mohammedan devolves on his heirs in specific shares at the moment of his death."
Gaz
(Querist) 24 February 2012
Dear Adv. Bharat, Thanks for your reply.
I am the youngest in the family, my sister is the eldest.
My father had purchased property with his and my brothers money in my name in 1992. Upon my sisters marriage this was gifted by me to my Sister under fathers instruction.
In 1995,she sold off her flat and with additonal money from dad and herself she bought another flat which exist till date.
In 1994/95 , we bought another flat in the name of my Brother in which I pooled 20% , my brother 60% and rest 30% by Dad.
Now as per our settlement,The existing flat in sisters name is hers , the existing flat in Brothers name is his and the Flat which is of the Parents where I live will be mine.
Is this sufficient enough to make MOU and bind the brother and sister not to stake claim when sucession opens.
My email id : jamazmi@gmail.com
Gaz
(Querist) 24 February 2012
Dear Adv Chugh, There is one more concern as pointed out by Adv Makkad that in case I die before my parents then my wife and children do not have any claim in the property of my parents. So will any MOU between my parents/bro/sis remain valid then.
