Upgrad LLM

muslim registered willl


Dear sir,

 

I hv joined the portal today after seeing rich content.

 

we are muslim sunni family .(subcaste-siddiqui) from UTTAR PRADESH .

my grandfather died in jan 2011. he has 2 sons and a daughter. daughter died in 2000 and she was given all the property owned by my true grandmother(35 acres) given around 40 years back. Daughter husband also died in 2002 before marrying another women. he was a govt. servant and his widower(second wife) is getting the pension.

my question are:-

1. can i claim the property of my  true grandmother.?

2. grandfather's daughter's son is claiming the property left by. is he entitled to do so?

3. grandfather's daughter's son has a registered will also and he excuted the will and got transfreed the property on his name....before he tranfered the property we(2sons of deceased) have our name on that property by succession.

please help in this regards.

 

 

 

 
Reply   
 
LEGAL CONSULTANT

Dear Mr.Qais,

If you and your brother are also successors as per the will,he cannot transfer the will on his name without informing you and it will be a criminal breach.For your information I am enclosing the will of muslims:

Wills by Muslims

Under Muslim Law, every adult Muslim of sound mind can make a will. A minor or a lunatic is not competent to execute a will. Though under Muslim Law, a person gets the majority at the age of 15 years, but in India, the case of will is governed by the Indian Majority Act according to which the minority terminates at the age of 18 years, but if the guardian has been appointed by the Court for the minor, the minority will terminate at the age of 21 years. The legatee can be any person capable of holding property and bequest can be made to non-Muslim, institution, and charitable purposes. A bequest can be made to an unborn person and a will in favour of a child who is born within six months of the date of making the will can be a legatee. But according to Shia Law, a bequest to a child in the womb is valid, even if the child is in the longest period of gestation i.e., ten lunar months.

The property bequeathed must be capable of being transferred and the testator should be the owner of the said property. The property bequeathed should be in existence at the time of death of the testator, even if it was not in existence at the time of execution of the will. A Muslim cannot bequest his property in favour of his own heir, unless the other heirs consent to the bequest after the death of the testator. The person should be legal heir at the time of the death of the testator. However, under Shia Law, a testator may bequest in favour of his heir so long as it does not exceed one third of his estate and such bequest is valid even without the consent of other heirs. The consent can be given before or after the death of the testator. But if the entire estate is bequeathed to one heir excluding other heirs entirely from inheritance, the bequest will be void in its entirety. According to Sunni Law, the consent by the heirs should be given after the death of the testator and the consent given during the lifetime of the testator is of no legal effect. Under Shia Law, the consent by the heirs should be free and a consent given under undue influence fraud, coercion or misrepresentation is no consent and the person who has given such consent is not bound by such consent. The consent by the heirs can be given either expressly or impliedly. If the heirs attest the will and acquiesce in the legatee taking possession of the property bequeathed, this is considered as sufficient consent. If the heirs do not question the will for a very long time and the legatees take and enjoy the property, the conduct of heirs will amount to consent. If some heirs give their consent, the shares of the consenting heirs will be bound and the legacy in excess is payable out of the shares of the consenting heirs. When the heir gives his consent to the bequest, he cannot rescind it later on.

 

Principle of rate able abatement in case heirs does not give consent.

Under Hanafi Law, if a Mohammedan bequest of more than one?third of the property and the heirs does not consent to the same, the shares are reduced proportionately to bring it down to one?third. Bequests for pious purposes have no precedence over secular purposes, and are decreased proportionately. Bequests for pious purposes are classified into three categories:

(i) Bequest for faraiz i.e. purposes expressly ordained in the Koran viz. hajj, zakat and expiation for prayers missed by a Muslim.

(ii) Bequest for waji-bait i.e. purposes not expressly ordained in the Koran, but which are proper viz. charity given for breaking rozas.

(iii) Bequest for nawafali i.e. purposes-deemed pious by the testator, viz. bequest for constructing a mosque, inn for travellers or bequest to poor. The bequests of the first category take precedence over bequests of the second and the third category and bequests of the second category take precedence over those of the third.

Under Shia Law, the principle of rate able abatement is not applicable and the bequests made prior in date take priority over those later in date. But if the bequest is made by the same will, the latter bequest would be a revocation of an earlier bequest.

 

No writing necessary

Under Muslim law, a will may be made either orally or in writing and though in writing, it does not require to be signed or attested. No particular form is necessary for making a will, if the intention of the testator is sufficiently ascertained. Though oral will is possible, the burden to establish an oral will is very heavy and the will should be proved by the person who asserts it with utmost precision and with every circumstance considering time and place.

But if the marriage of a Muslim has been held under Special Marriage Act, 1954, the provisions of Indian Succession Act, 1925 shall be applicable and he cannot execute a will under Muslim law.

 

Revocation of will by a Muslim

The testator may revoke his will at any time either expressly or impliedly. The express revocation may be either oral or in writing. The will can be revoked impliedly by testator transferring or destroying completely altering the subject matter of the will or by giving the same property to someone else by another will.

 


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Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)

Your question has raised a lot many questions :-

1) How did daughter get the property in the first place ?

2) A Muslim in a will cannot bequeath more than 1/3rd of his property. 

 

Nothing conclusive can be said as your query is not very clear. 

 
Reply   
 
LEGAL CONSULTANT

Dear Qais,

Asnwer to the points raised by Bharatji.

 
Reply   
 

dear sir,

thanking you for your precious advise. am answering the question raised by  bharat sir.

firstly i am detailing my family tree so that there is no room for  confusion. 

                 

                              grandmother"s mother         grandmother' father

                      ________________________________________________

                                                       |

                                             grandmother                       grandfather

                                                    (died)                                   (died)  

                                                        |

                       ___________________________________________________

                                           |                                       |                                      |

                                   eldest daughter               elder son                       younger son

                                        (died)

                      __________________________________________________________

                              |           |          |                       |       |        |      |                   |                    |      |       |

                           son     son      son                 son   son   son   son       daughter    son son son

now, my grandmother's mother gave all her property directly to eldest daughter (marked as yellow in above tree) in her lifetime .  MY grandmother's mother had only one child i.e my grandmother.

1. can i claim the property of my   grandmother' mother.?

This is the the case related to my first question.

 

MY other two question was for another case which i am briefing hereby:-

Now the son's of eldest daughter are claiming the property of my grandfather.And he has a will of my grandfather that he didnt showed to us till now and he excuted it and get one of the property tranferred in his favor.

I am son (marked as red in above tree)  of elder son.As the daughter of younger son is married to  eldest daughter's son(marked as green in above tree ) . My father was in govt. job till 2011 so we were not in touch with our hometown as he was posted outside home town and we were focusing on our studies.

 

                                                        

 
Reply   
 

dear sir,

thanking you for your precious advise. am answering the question raised by  bharat sir.

firstly i am detailing my family tree so that there is no room for  confusion. 

                 

        grandmother"s mother         grandmother' father

    ________________________________________________

                        |

                 grandmother                       grandfather

                      (died)                                   (died)  

                            |

    ___________________________________________________

                          |                                       |                                      |

         eldest daughter               elder son                       younger son

                   (died)

  __________________________________________________________

     |           |          |                       |       |        |      |                   |                    |      |       |

   son     son      son                 son   son   son   son       daughter    son son son

now, my grandmother's mother gave all her property directly to eldest daughter (marked as yellow in above tree) in her lifetime .  MY grandmother's mother had only one child i.e my grandmother.

1. can i claim the property of my   grandmother' mother.?

This is the the case related to my first question.

 

MY other two question was for another case which i am briefing hereby:-

Now the son's of eldest daughter are claiming the property of my grandfather.And he has a will of my grandfather that he didnt showed to us till now and he excuted it and get one of the property tranferred in his favor.

I am son (marked as red in above tree)  of elder son.As the daughter of younger son is married to  eldest daughter's son(marked as green in above tree ) . My father was in govt. job till 2011 so we were not in touch with our hometown as he was posted outside home town and we were focusing on our studies.

 
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