How to make a partition of immovable property
kadir
(Querist) 04 June 2014
This query is : Resolved
sir,
I belong to a muslim (sunni) family and a resident of ghaziabad (u.p)
my query is...
we have a ancestral property and that property is aquired by my great great grand father.and that is agricultural land.
at present some portion of this land is use as shops,house etc.because all nearby area is developed as colonies (Aabadi area).
now my grand father is alive and aged about 80 years while his older brother has been died. all property is orally divided my mutual consent between my grandpa & his late brother.
but in khatoni name of my grandpa and his nephew is shown but area of land is still combined.
now my grandpa want to make a will to his legal heirs.can he do so ? because he is not a absolute owner of his property because property is undivided in paper and he is only a co-owner of that land.
my question is..
1.can my grandpa make a will?
some of my relative said that at first he have to make a partition deed between himself and sons of his late brother.and after that my grandpa can make a will for his share.
is that true?
if so how can we make a partition deed.?
and what is the procedure to make, register that deed?
plz help me....
Lawyer SALEEMA
(Expert) 05 June 2014
Even oral partition is valid if the partition was physically effected and separately allotted the shares to all the sharers. There is no need to execute a separate partition deed again.
A muslim can execute Will in respect of his 1/3 share alone. Even if a muslim executed will for his entire property, it is valid only for 1/3 share
Raj Kumar Makkad
(Expert) 06 June 2014
Though practically partition has already been taken place but will is not dependent over the partition of the property. A muslim can bequeath only one third of his share by way of will which can be made even in joint share.
T. Kalaiselvan, Advocate
(Expert) 06 June 2014
The concept of a joint family or of coparcenaries property (as is recognised under Hindu law) is not known to Muslims. Whenever a Muslim dies, his properties devolve on his heirs in definite share of which each heir becomes an absolute owner. Subsequently, upon the death of such heir, his properties are again inherited by his legal heirs, and this process continues.
Thus, unlike Hindu law, there is no provision for any ancestral or joint-family property. Accordingly, under Muslim law of inheritance, no distinction has been made between self-acquired and ancestral property. All properties, whether acquired by a Muslim himself or inherited by his ancestors, are regarded as an individual property and, may be inherited by his legal heirs.
Heritable property is that property which is available to the legal heirs for inheritance. After the death of a Muslim, his properties are utilised for the payment of funeral expenses, debts and the legacies i.e. wills, if any. After these payments, the remaining property is called heritable property. Under Muslim law, every kind of property may be a heritable property.
Under the customary Muslim law, a person cannot bequeath more than one-third of his property by will.
Last but not least:
Under Sunni law, the distribution of the assets is per-capita. That is to say an heir does not in any respect represent the branch from which he inherits.
M has got two sons A and B. A has three sons, S1, S2 and S3. В has two sons S4 and S5. When M dies there are two branches of succession, one of A and the other of B. Suppose, A and В both die before the death of M so that the sole surviving heirs of M are his five grandsons.
Now, under the per-capita scheme of distribution (as recognised under Sunni law) the total number of claimants (heirs) is five and the heritable property would be equally divided among all of them irrespective of the branch to which an heir belongs.
Therefore, each of them would get 1/5 of the total assets of M. It may be noted that under Sunni law the principle of representation is recognised neither in the matter of determining the claim of an heir, nor in determining the quantum of share of each heir.
Hope this clarifies the query in detail (?)
kadir
(Querist) 08 June 2014
thank you,
Mr.T. Kalaiselvan for such a useful knowledge
it really help me a lot.
but sir I would like to add some point in your example...
in your example suppose Mr. M and his son B has died.
only A and B's son s4 and s5 are alive.
in that case, my question are...
Q1-can Mr.A make a will to his son S1 S2 S3 ?
Q2-how can Mr.A sell his portion without consent of S4 and S5.
Q3-is this possible to make a partition deed between Mr.A and S4 S5.so each of them enjoy his portion of property as he deem fit.like he can sell his complete portion without interruption of other member.
Raj Kumar Makkad
(Expert) 08 June 2014
Under Muslim Law, the children of a pre-deceased son shall not get any share in the succession so s4 and s5 shall not get any share out of properties left by deceased. A can definitely make a will of his 1/3 share in the property in the name of his sons. No consent of s4 and s5 is required to sale the share by A. As there is no share of s4 & s5, the question of partition between A and them do not arise.
