• Partition of property

I come from a Muslim (Sunni) family in Kerala and have 2 Brothers & 2 sisters. I am the youngest at age 50.
All my brothers & sisters are married and they live in Indian, while I have lived along with my family as an NRI in Middleast for past 20 years and come to Kerala once a year.
Both my brothers are doing business, for which my father gave them the initial capital. (Though I am not be in position to prove the same as they started their business about 25 to 30 Years back).
Also, my father was in Mumbai for over 30 years, had a shop & flat which he sold in 1995/96 & 2005 for sizable amount as he was in requirement of money for which I did not receive a share of it. 
Besides this he also had a flat in Cochin, which he had purchased in 1995 and sold to me in 2006, as he was in requirement of money.
My partition of land was done about 10 years ago. During the period I had given my Power of autonomy to my father expecting fair deal. However, it was not the same, except the family house, partition was conducted by my father for which I was give the least land and I was expecting the family house and associated land. 
My mother during the period of Partition was healthy but at present is bed ridden and have memory problems and recently my father also passed away. The house is in the name of my mother and now I fear that all siblings will stake claim to the house.
Further, my eldest brother who is doing business in the area has constructed a go down adjacent to the house,( in the house boundary wall itself)

I would like to have your advice as to how to proceed.
Asked 4 years ago in Property Law
Religion: Muslim

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7 Answers

On demise of mother intestate you and your siblings wold inherit her property as per Muslim personal law

2) please note that Muslim cannot bequeath more than one third of her property by will

3) your mother can during her lifetime execute gift deed for property standing in her name

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

1. You need to appreciate some basic legal concepts before your claim to share in father's property can be assessed

2. So long as your father was living, he was entitled to deal with all his properties in any manner he deemed fit without any reference to his children

3. After the father passed away, his estate will be distributed among his legal heirs each of whom will have a fixed share as per Sharia law

4. If on partition of property you felt that you were not given proper share or that the partition was not equitable, you could have challenged the partition within a maximum period of 3 years from the date of partition. Any challenge to partition sought to be made now will have to pass the scrutiny of law of limitation which prescribes max period of 3 years for asserting any legal right

5. Your siblings including you will have a claim on mother's house only after she passes away in which event it will be distributed among legal heirs as per intestate succession of sharia law. If your mother makes a Will for her estate, she can do so only to the extent of 1/3rd and not beyond. Any bequest in excess of 1/3 if made will need consent of legal heirs

6. It is advisable that your mother settles the house among her children in her lifetime itself so that there are no disputes in future

Yusuf Rampurawala
Advocate, Mumbai
6878 Answers
79 Consultations

5.0 on 5.0

1)As per Shariah law, After the Death of owner,the Property will be Divided between all legal heir class 1.

2)Without any Consent of all Legal Heir Your Brother Cannot Sell the said property.

3)Even After your Mother's demise you can file a partition suit in Civil court.

4)untill your mothers life she can transfer her property to anyone without consent of others.

5)The wasiyat (will) under Islamic law

A Muslim cannot give away more than one third of her total property through a will.

Mohammed Mujeeb
Advocate, Hyderabad
19029 Answers
32 Consultations

4.5 on 5.0

1. The best and only effective course of action on your part shall be to file a partition suit claiming partition of your deceased father's properties as per Sharia.

2. In the aforesaid partition suit include all the properties which stood in the name of your father.

3. Engage a local lawyer having expertise in this field.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

Dear Sir,

You make use of following settled law of the land

Rules Governing Inheritance of Property under Muslim Law

Under the Indian legislative scheme, the rules that govern inheritance under the Muslim law depend on the kind of property involved. In cases of Non testamentary succcession, the Muslim Personal Law (Shariat) Application Act, 1937 gets applied. On the other hand, in case of a person who dies testate i.e. one who has created his will before death, the inheritance is governed under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis. In cases where the subject matter of property is an immovable property which is situated in the state of West Bengal or comes within the jurisdiction of Madras or Bombay High Court, the Muslims shall be bound by the Indian Succession Act, 1925. This exception is only for the purposes of testamentary succession.

It is noteworthy that the Muslim law does not make any strict distinction between any two or more type of properties such as movable and immovable, corporeal and incorporeal etc. Since there is no such distinction between different kinds of properties, therefore, on the event of death of a person, every such property which was within the ambit of ownership of the deceased person shall become a subject matter of inheritance. The amount of property that shall become the subject matter of inheritance and is made available to the legal heirs to inherit shall be determined after making certain appropriations. Such appropriations may include expenses paid in lieu of funeral, debts, legacies, wills etc. After making all these payments, the left over property shall be termed as the inheritable property.

Principles governing rules of inheritance of joint or ancestral property

Unlike Hindu law, there is no provision of distinction between individual i.e. self acquired or ancestral property. Each and every property that remains within the ownership of an individual can be inherited by his successors. Whenever a Muslim dies, all his property whether acquired by him during his lifetime or inherited from his ancestors can be inherited by his legal heirs. Subsequently, on the death of every such legal heir, his inherited property plus the property acquired by him during his lifetime shall be transferred to his heirs.

Birth right

The principle of Hindu law of inheritance of Janmaswatvad does not find place in the Muslim law of inheritance. The question of inheritance of property in Muslim law comes only after the death of a person. Any child born into a Muslim family does not get his right to property on his birth. In fact no such person holds becomes a legal heir and therefore holds no right till the time of death of the ancestor. If an heir lives even after the death of the ancestor, he becomes a legal heir and is therefore entitled to a share in property. However, if the apparent heir does not survive his ancestor, then no such right of inheritance or share in the property shall exist.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

1) You can make application to registrar that all siblings names should be added on property card as nomination as mother is not feeling well due to old age problem.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

If you feel aggrieved over the distribution of property then you can file a suit.

However a partition of your father's property during his lifetime cannot be challenged after his death.

If you have purchased the house proeprty from your father by a registered deed, then you can claim the same even if it is occupied by some other person.

You ascertain your exact problems, gather all the document, consult an advocate in the local and then proceed as per the advice given by the advocate after perusing the documents produced before him.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

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