Will under muslim law
javed ahmed
(Querist) 17 October 2015
This query is : Resolved
Respected Members,
My grandmother bequeathed a property to my father through a registered will about 25 years ago, my father has a elder brother and a sister, my fathers elder brother died about 15 years ago, about 2 weeks ago my father too died.
Now only my fathers sister is alive, will my fathers sister get any share in the said property, as per Mohammedan law for the will to work my fathers sister needs to give her consent BUT for the last 25 years she didn't asked for her share in the said property, will the 'limitation act' work in this case, my father sister didn't claimed her share for the past 25 years which means my father became the absolute owner of the said property is it possible ?
NOTE: The said property was gifted to my grandmother by her sister, it wasn't sold to her. My grandmothers sister had adopted my father so she gifted the property to her sister as an act of kindness that it should be given to her adopted son after he grows up.
Thank you
Anirudh
(Expert) 17 October 2015
A muslim can give entire property through GIFT. (Therefore, when your grand mother's sister gave her entire property in GIFT to your ground mother, that was valid).
However, a muslim cannot give the entire property under WILL. Maximum 1/3rd can be given in WILL. Therefore, your grand mother could not have given the entire property through WILL to your father.
Please indicate whether your father's sister is asking for any share now?
If she is demanding then the property left behind by your grand mother will get divided in the following manner.
1/3rd of the property given as WILL to your father. (Though this claim can also be contested, saying that when the WILL itself is invalid as it bequeaths more than 1/3rd of the property, 1/3rd cannot be assumed to be given under WILL).
Remaining 2/3rd has to be divided between your father and his sister in 2:1 ratio. That of the 2/3rd property, your father will get 2/6th and his sister will get 1/3 and his sister 1/6.
If the WILL is not given effect to, and held to be non-est, then the property left behind your grandmother has to be divided, as said earlier in the ratio of 2:1 between your father and his sister. This will be 2/3rd for your father and 1/3rd for your father's sister.
javed ahmed
(Querist) 17 October 2015
@Anirudh
Sir, First of all thanks for posting a reply on this topic.
Yes! my fathers sister is asking for her share now, but since she didn't agitated against the will for a long time almost 25 years, will the 'limitation act of 1963' apply in this case. A local lawyer here said that the 'limitations act'will apply in this case becuase my fathers sister kept quiet for a longtime without agitating against the will.
My father had a elder brother too he died about 15 years ago he also never contested for this property. so how much share do we get in this property given the fact that no one contested or agitated against the will for 25 years.
I will be ever thankful to your advice.
Thank you sir.
Anirudh
(Expert) 17 October 2015
The question is when did your father claim his right for the property through the WILL? that too to the knowledge of his brother and sister?
Your father, your father's elder brother and sister etc., might have lived in the property. Till your father's elder brother died he might not have asked for any share in the property since he was living there.
Similarly, your father's sister also might not have asked for any share in the property so far she lived there and (after marriage she might not have asked for her share as it was only her brother was living there.) That does not mean that they have given up their claim for the share.
It is only now that your father has also died that there is need for partition - as they do not know how the sons/ daughters of their deceased brother (your father) would behave.
To simply put, there was no occasion for them to contest the WILL at all - they will claim that there were not at all aware that there existed any such WILL.
javed ahmed
(Querist) 17 October 2015
Sir, thanks again.
Immediately after the death of my grandmother the will became active it was in the year 1993 (its almost 23 years) my fathers elder brother and sister were aware of this will, none of them lived in the said property, they all knew that such a will existed but never contested it in court. They once asked for share in the year 1994 by sending a lawyers notification, my father at them time replied they don't have any share in the property and they kept quiet after that.
Now after so many years because my father is no more they are coming for the property share.
Neither my fathers elder brother nor my fathers sister ever lived in the said property, only my father and his children (me and my siblings) have lived here for the past 15 years it was a vacant site before that. Leave aside living in that property they didn't even cared to peep into the house for the last 25 years, So in this scenario will the "limitations act" apply ?
Thank you.
Anirudh
(Expert) 17 October 2015
Did your father ask for mutation of the property on the basis of WILL? If he has not then even he cannot be said to have given any effect to the WILL.
If he had sought mutation of the property on the basis of the WILL, then the question of No objection from his brother and sister would have been called for. At that time they would have either given their No objection or might have objected.
Therefore, there was no occasion for them to react to the WILL. In any case, now they will say that they were not aware of existence of any such WILL.
In the situations envisaged by me, there may not be any limitation which will come in their way, in case they claim their share in the property.
No doubt, if you have the legal notice which you said that they had sent, then in that case the limitation may apply.
javed ahmed
(Querist) 17 October 2015
Sir, Thank you very much.
I have the notice that was sent to my father by his sister and i also have the reply my father gave to them, in the reply it has been clearly stated that my fathers elder brother isn't interested in the property, in the notification my father has clearly mentioned to my father sister that she has no right over the property and that her mother (my grand mother) has bequeathed the said property through a registered WILL.
I'm not aware of the fact whether my father had asked for mutation of the property on the basis of WILL. Thanks for all the replies sir, really grateful to you.
Please advice should i send any notice to my fathers sister in this regard ?
They are quite quarrelsome people and have been harassing us ever since my father has passed away is there any legal action that i can take against them ?
Anirudh
(Expert) 17 October 2015
Presently you have nothing to do. Even if they create any problem from now and then, better ignore.
However, only when they file any case for the property, then better defend your version of the case effectively, by engaging a competent lawyer. You should keep all the documents in your favour safely and show it to your lawyer.
javed ahmed
(Querist) 17 October 2015
Thank you very much. I can't express this gratitude of yours through words.
Regards
Rajendra K Goyal
(Expert) 18 October 2015
adequately advised by the expert Anirudh, no room to enter.
T. Kalaiselvan, Advocate
(Expert) 22 October 2015
Expert Mr. Anirudh is right in his opinion that a Muslim cannot bequeath entire property through a Will,only 1/3 rd property can be bequeathed in favor of beneficiary, therefore your father's sister is legally entitled to a share out of the remaining 2/3 rd share in the property which should be equally divided further shares entitling a share to the deceased brothers family too along with your paternal aunt's share.
For the present you remain calm, let she send a notice or file a partition suit then you can challenge the case on the basis of merits in your side and as per law.
