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Amjad Pasha (Manager)     26 February 2010

Will vs Gift

We are muslims . My mom has self acquired property in her name. Even my father had some property. To avoid future liltigations , my mom and dad jointly executed will in favour of me and my brothers. My mom is alive. My sisters are objecting will . The will was executed when we all ( children ) were minor and registered. One of my brother is dead. My sisters are frightening us ( sons ) that they will fight for and get the share. They want equal share in property. Though my mom and myself got my sisters married in good places. They are not open for mutual agreement. Please suggest what to do. They want share in my mothers property as well as fathers property equally and nothing else. Please advice. Can my mom appeal in the court of law for justice and settle the issue. What does muslim law say? What does Quran say ?



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 2 Replies

A V Vishal (Advocate)     26 February 2010

Muslim law recognises that persons may leave behind a will, but a will (unless ratified by all the heirs of the person leaving behind the will) is valid only to the extent of one-third of the deceased's property. Insofar as it is valid, it is governed by the regular laws applicable to wills in India.

The reason for restricting a person's testamentary capacity to a third is on account of what has been stated by the Prophet Himself in conversation with one of his disciples, Abu Waqqas.

Abu Waqqas was ill and very near dying and the Prophet came to see him. Abu Waqqas said to the Prophet, "O Prophet, I have much property and no heir other than my daughter. May I leave a will, bequeathing all my properties for charitable purposes?" The Prophet replied that he could not. "May I leave 2/3rd then?", he asked. The Prophet again replied that he could not. "May I leave half then?" Again the answer came in the negative. "May I leave 1/3rd then?", he persisted. And the Prophet replied, "Make a will disposing one third in that manner, for one third is a great deal." The Prophet went on to say, "Verily, it is better that you leave your heirs rich, than to leave them poor to beg."

This account is related in the book, Mischat ul Masabih. Since this rule is something the Prophet has Himself stated, it has the force of law, it being a Sunna.

Sanjay Kumar Sharma (advocate )     26 February 2010

A person executed a gift deed in favour of certain persons but later he also executed will in favour of his Legal Representatives. The property involved in gift and will are same. Now the question arises, which of the deed will survive. wheather the will is valid. Kindly give case laws. Latest


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