Want to challenge the will
Manjeet
(Querist) 25 November 2014
This query is : Resolved
Hello All
Need legal advice from any of the experts on this forum. This is regarding distribution and claim to father's property by children after father's death.
My name is Masita Ram (Muslim-Suni), I am from Himachal Pradesh.
Fact: We are four brothers and three sisters in a family. We all are married and well settled in their respective families.
Our father (was Uneducated) before death made a will in front of two witnesses and that was not known to anyone of us. He mentioned in the WILL after his death entire property will be distributed among all of us (all brothers and sisters). But he specifically mentioned 1/3rd (Disputed Land) of the property(Portion of allotted property by Himachal Government) will go to very younger brother's child(because he is suffering from Polio-sort of handicap). According to WILL even younger brother is also allowed to take his portion in the balance property.
When father died my younger brother got the WILL and went to the authority for registration of that disputed property without intimating to anyone in the family.
We filed in the civil court and judgment was passed in the favor of him.
We are upset about this and want to find out:
1. Can we challenge the WILL for 1/3rd of the property? and HOW?
2. Is that valid WILL?
3. Can we challenge on the basis of that property was government allotted and cannot WILL as he did.
Please advise...
Thanks,
Masita Ram
ajay sethi
(Expert) 25 November 2014
1) Muslims are governed by their personal (Sharia) under Shiite law muslim cannot bequeath more than 1/3rd property by will
2) in your case since entire property was bequeathed will can be subject matter of challenge
3) you can also challenge will if your father was not mentally fit at time of execution of will
Anirudh
(Expert) 25 November 2014
Have you challenged the WILL before the Trial Court questioning its authenticity?
I do not think so.
I think that while you agree that the WILL was executed by your father, but you are only objecting that he had given 1/3rd of the property to the child of your youngest brother. (This is apart from the share that your youngest brother is getting from the balance property).
As rightly pointed out by Mr. Ajay Sethi, a muslim can give by way of will maximum 1/3rd of his property. In this case, your father has done only that - i.e. 1/3rd of the property to the child of his youngest son.
Therefore, you have no case to fight at all.
Manjeet
(Querist) 27 November 2014
Thanks to all for your answers.
To Ajay/Anirudh: agree with you that my father can WILL only 1/3rd of the property. But what if my younger brother is already have some of the portion using as Hotel?
we did not challenge the WILL before trial Court about its authenticity.
At this stage can we challenge?
What about the property was allotted to my father by government?
Anirudh
(Expert) 29 November 2014
None of the fact situation indicated above in the latest post, will in any way affect the WILL (giving 1/3rd of the property) made in favour your younger brother's.
Having not questioned the genuineness of the will before the Trial Court, you will not be able to challenge the same now.
If your father can legally give in partition some portion of the government allotted property to you all, then how can you question his legal authority to WILL some portion of it to anybody?
