Share of grandson
zoya
(Querist) 25 April 2012
This query is : Resolved
i have read that as per muslim law grandson does not get share,when other son and daughter of the deceased is alive.
when granfather died he has two sons & a daughter.after 7 years elder son died without asking for his share in his father's property.can his son ask for his father's share as principle of representation is not recognised in muslim indian law .please clear this.
Deepak Nair
(Expert) 25 April 2012
On the death of his father, he authomatically becomes eligible for his father's share in the property
Suhail A.Siddiqui
(Expert) 25 April 2012
THERE IS NO PROBLEM U MAY ASK SHARE FROM UR GRAND PA PROPERTY AS PER ISLAMIC LAW OF INHARITANCE.
SAINATH DEVALLA
(Expert) 26 April 2012
Dear Querist,
Go through the following:
MUSLIM LAW OF SUCCESSION TO PROPERTY
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."
The Shariat Act was passed by the Central Legislature in 1937. It became for the first time extended to Part "B" States by virtue of the Central Act 48 of 1959 (which came into force on February 1, 1960), called the Miscellaneous Personal Laws (Extension) Act, 1959, which amended its extent clause in such a way as to apply the statute to whole of India except to Jammu and Kashmir. The principal operative section of the said Act is section 2, which reads : "2. Notwithstanding any custom or usage to the contrary, in all question regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq ila, zihar, lian, khula and mubarrat, maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs (other then charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)."
Supreme Court in Mohammad Yunus v. Syed Unnissa. AIR 1961 SC 808, Interpreting the force or effect of the words in section 2 of the Shariat Act to the effect that in all matters enumerated therein, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law, their Lordships state that the statute would apply not only to suits and proceedings instituted subsequent to the coming into force of the statute but also to suits and proceedings pending on that date whether in original courts or tribunals or in appeal.
Inheritance is an integral part of Shariah Law and its application in Islamic society is a mandatory aspect of the divine teaching of Islam. Muslims inherit from each other as stated in the Qur'an: “ لِّلرِّجَالِ نَصيِبٌ مِّمَّا تَرَكَ الْوَالِدَانِ وَالأَقْرَبُونَ وَلِلنِّسَاء نَصِيبٌ مِّمَّا تَرَكَ الْوَالِدَانِ وَالأَقْرَبُونَ مِمَّا قَلَّ مِنْهُ أَوْ كَثُرَ نَصِيبًا مَّفْرُوضًا ” {“4:7 There is a share for men and a share for women from what is left by parents and those nearest related, whether, the property be small or large - a legal share.“} [An-Nisa 4:7] Hence, for Muslims in India there is a legal share for relatives of the deceased in his estate/property. When a person dies there are four rights that need to be performed his property:
1. Pay his/her funeral and burial expenses
2. Pay his/her debts
3. Execute his Will/bequest (max 1/3 of his/her property)
4. Distribute remainder of his/her estate/property according to Shariah Law
In relation to inheritance, Mohammad said: Narrated Ibn 'Abbas: “The Prophet said, "Give the Fara'id (the shares of the inheritance that are prescribed in the Qur'an) to those who are entitled to receive it. Then whatever remains, should be given to the closest male relative of the deceased." Thus it can be seen that under Muslim Law no stranger outside the family shall succeed under Shariat Law of Inheritance or Under Quranic Commands.
Anirudh
(Expert) 26 April 2012
Dear Zoya,
Please tell the following information before one could give you the answer.
1. Whether you belong to Sunni or Shia.
2. When your grand father died - who are his survivors? (indicate whether the following were alive: his mother, his father, wife, son, daughter, daughter's son etc.)
3. You also indicate if there are any persons at serial No.2 who have died subsequently and then what is their family composition i.e. wife, daughter, son etc.
4. You also please indicate what is the property with which this question arises.
Shonee Kapoor
(Expert) 26 April 2012
Yes he can.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
prabhakar singh
(Expert) 27 April 2012
Things are not that easy as is being considered.
Muslim inheritance law is a bit complicated
for conditions in which a share is decided.
Better you answer to queries raised by Mr.Anirudh.
zoya
(Querist) 27 April 2012
I answer to the questions raised by expert Anirudh
1.we are sunni muslim
2.when grandfather died almost 10 years ago
his survivours
1.wife(grandmother) 2.elder son
3.younger son 4.elder daughter
5.younger daughter.
3.Elder son died after 7 years
4 Wife died after 8 years
5.property in question is a plot in prime location
Anirudh
(Expert) 27 April 2012
On the death of your grand father, the property will be divided in the following share:
Grand mother = 1/8th
Sons = 14/48 each
Daughters = 7/48 each
When the Grand mother died, her 1/8th share will go only to the surviving son (younger son) and the two daughters in the following ratio:
Younger son = 2/32
Daughters = 1/32 each
Thus, ultimately the shares will be as under:
Elder son = 14/48
Younger son = 14/48+2/32 = 17/48
Daughters = 7/48 + 1/32 = 17/96 each
You have not indicated the family structure of the Elder son at the time of his death i.e. who are all his survivors (wife, son(s), daughter(s) etc.) only after knowing this, one will be in a position to say how his 14/48th share int he property will get divided.
zoya
(Querist) 28 April 2012
thanks a lot
here i am giving elder son' family structure
elder sons survivors
1. his wife(second wife)
2. his son(from second wife)
3. his daughter(from second wife)
4. his daughter (from first divorced wife)
please tell me share of each four above.
also one more query if muslim person makes a registered will to one of his son & granddaughters.for long time other heirs do not ask for their share & allow the son & grand daughter to enjoy the property. is it implied consent.
Anirudh
(Expert) 29 April 2012
The property of the deceased elder son will be divided in the following proportion:
Wife(widow) = 1/8th
son = 14/32
daughters = 7/32 each
A muslim cannot give more than 1/3rd of his property by way of will.
This general rule is mainly aimed at protecting the interests of the heirs.
However, there is an exception to this rule. If the heirs, whose benefits would be affected in case of WILL giving away more than 1/3rd of the property, give voluntarily their consent to such a WILL, then notwithstanding that more than 1/3rd of the property has been given away by means of a WILL, the said WILL would be valid. BUT, THIS REQUIRES A VOLUNTARY CONSENT by other heirs.
Such a consent by other heirs cannot be IMPLIED. It should be expressed. If not expressed, the same is not valid.
