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Mohameddan law...

(Querist) 19 April 2009 This query is : Resolved 
Dear All,

Please clarify, Any Mohameddan Law expert..


Grandmother was survived by only 2 daughters and the only son had predeceased her with 3 children one male and 2 females.


Whether Orphaned grandchildren are entitle for any share in their grandmother’s property?

As Per Mohameddan law, Orphaned grandchildren are not entitle for any share in their grandparents property as they cannot step into the shoes of their father and succeed in the inheritance as there father would have been if he was alive , According to Doctrine of representation of Mohameddan law, Only heirs alive at the time of the death of the parents will succeed in the inheritance those who predeceased, their heirs are excluded from Inheritance.

But ,There is some confusion when referred to Mullah's book,
In section 65 he says daughter as a sharer is entitle for only 1/3 rd share, As in our case only 2 daughters survived they will get--- 1/3 rd Share --1st daughter + 1/3 rd Share 2nd daughter and the remaining 1/3rd will be residue which will go to the Orphaned grandchildren thru the predeceased son, Is it right ?

Or Orphaned grandchildren are completely excluded from inheritance based on Doctrine of representation ?
ESTHERPRIYA (Expert) 19 April 2009
The partition will be based on the law applicable to shia or sunni. And in your case there is a son, so shares of daughter will change. The Orphaned grandchildren as residuaries will have a share in it. There is a ratio of division among themselves.


imthiyaz (Querist) 20 April 2009

Dear Madam,

Thanks for your reply,

we are Sunni Mohameddans,

Here there is no son,
Only two daughters survived their mother, the son had predeceased the mother, the predeceased son has 3 children One son and two daughters.

My Question is whwther these orphaned grandchildren will get any share in their grandmothers property.. As i said above as per Mohameddan law, Heirs who are alive at the time of their prents death are the only ones who are entitle for share...

ThANKS

adv. rajeev ( rajoo ) (Expert) 21 April 2009
SEC 123 of Mohd., law : The right of inheritance to the estate of a deceased Mohd., vests in his heirs at the moment of his death and is not lost by the death of any heir before the distribution of the property.
122: The right of an heir comes into existence only on the death of the person of whom he is an heir.
SEc 124 : No person who is entittled to succeed according to mohd., law as an heir to the estate of deceased mohd., shall be excluded from inheritance.( Pl. ref Verma's Mohd.,law)
125. The estate of a deceased Mohd devloves on his heirs separately and the heirs are entittled to hold the property as tenant-in-common, each having definite share in the whole property.
imthiyaz (Querist) 21 April 2009

Thanks for reply Sir,

It is very clear from Mohameddan Law,That Orphaned grandchildren are not entitle for any share in their grand parents property.

My Question is, Here in our case our At the time of death of our grandmother only daughters survived her, and her Son had predeceased her, Hence i want know, Whether the 2 daughters survived can exclude these Orphaned Grandchildren (1 grandson and two grand daughters from the predeceased son) completely.

Thanks
imthiyaz (Querist) 21 April 2009

Thanks for reply Sir,

But, My Question is not regarding birth right, It is well known in Muslim law birth right is not recognised..

And also, It is very clear from Mohameddan Law,That Orphaned grandchildren are not entitle for any share in their grand parents property if their father or mother had predeceased their father or mother.

My Question is, Here in our case our At the time of death of our grandmother only daughters survived her, and her Son had predeceased her, Hence i want know, Whether the 2 daughters survived can exclude these Orphaned Grandchildren (1 grandson and two grand daughters from the predeceased son) completely.

Thanks
A V Vishal (Expert) 30 April 2009
No other views?



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