Yes you have a legal share on the same you can approach court to claim your share
Muslim Property Will Law Clarification
Hello, My grandfather had two wives. First wife has 1 son, he is my father. And second wife have 1 son and 2 daughters. My grandfather had a house which was given by his dad in 1958. He wrote a will in 1991 to transfer the house to 2nd wife's son (my uncle) without my dad's knowledge. My uncle sold the house in 2015 without our knowledge. My grandfather and my father are no more. We are Muslim (Sunny). I heard like a muslim can give only one third of his/her total property through a will. Kindly advice whether we have legal share on it? If yes, how can we proceed further? And what will be the share to my father? Thanks!
Asked 4 years ago in Property Law
Religion: Muslim
First answer received in 10 minutes.
Lawyers are available now to answer your questions.
19 Answers
Will was valid up to 1/3rd share. Have to file suit for cancellation of sale deed and partition.
Out of 100 - 33% of son under WILL. In rest 66% - both son will get 26% each total 52% and 14% sister will get.
According to the Shariat law, a person can only leave one-third of their property to anyone they wish. The remaining two-thirds will, by law, go to their heir or heirs, equally shared between them.
For example, if an individual has Rs. 3.3 lakh (or an asset worth the amount), and he owes someone Rs. 10,000/. With the funeral expenses added to it, say, Rs. 20,000, he can only leave the one third of 3 lakh (Rs. 1 lakh) in his will to someone other than his heir. The remaining Rs. 2 lakh must go to his heirs.
It seems two thirds of the property devolves equally on all legal heirs while one third can be given on the testator's wish.
Regards
G.Rajaganapathy
High Court of Madras
You are absolutely correct Muslim can bequeath only one third property by will
2) you can file suit to set aside sale of property by your uncle claim your share in property
It is true that as per the shariah law applicable to muslims only a third of the property can be willed. A cancellation of sale deed must be filed in the civil court. He could not have sold the property.
1. Yes you will have legal share in that property.
2. For that you have to file suit for partition and set aside the sale done by your uncle. Your father will get 1/3 share from remaining property.
3. And in this you have to make party to buyer who purchased the house from your uncle.
- under Muslim personal laws (Shariat) , A Muslim can dispose/transfer only up to one-third of his property by way of WILL, which is left after payment of funeral expenses and debts without the consent of his heirs.
- AND the remaining two-thirds of the testator’s property must go to those who are his heirs at the time of his death.
- Hence, after the death of your grandfather & father, now you can claim for remaining shares legally, and the house given to your uncle was not valid .
- Since,your uncle has sold the said house without you consent, hence you can seek a share in the monetary consideration of that house legally.
- Further, that sale transaction is also not valid as law.
- For getting the same , firstly you should send a legal notice , and thereby ask a share or alternatively amount into the same.
- If no response, within 15 days of time, then file a Partition suit , for getting the same.
Good luck and dont forget to rating Positively.
Yes, only a third of property can be willed away. You may challenge the Will at the district court through a local advocate.
Now got some clarity on will law. Thanks for all your guidance. Just yesterday I came to know about 'Gifts' in Muslims property law. If My grandfather gave the property as Gift (or Hiba) to my uncle. Stil it is valid to claim my father's share? How can I confirm that, property transferred as Gift/Wil? I have checked the document in online, the nature of document is "settlement in favour of family members". Please give some guidance on it...
Asked 4 years ago
If it's gift and the property is self acquired grandfathers property then you will not have share. Otherwise you will definitely have one. If it's settlement then you can get your father's share
In llahi Samsuddin v. Jaitunbi Maqbul, the Supreme Court held that under Muslim Law, declaration as well as acceptance of gift may be oral whatever may be the nature of property gifted. Where a gift is made in writing, it is called Hibanama. This gift-deed (Hibanama) need not be on stamp-paper and also need not be attested or registered..
Muslim can during his lifetime execute gift deed for his property
2) gift deed or settlement deed would be valid
You are right that a Muslim can bequeath only one third of his property to the beneficiary in the form of a Will as per Muslim personal law.
When a Muslim dies there are four duties which need to be performed. They are:
- Pay funeral and burial expenses.
- Paying debts of the deceased.
- Determine the value / will of the deceased (which can only be a maximum of one third of the property).
- Distribute the remainder of estate and property to the relatives of the deceased according to Shariah Law.
Therefore, it is necessary to determine the relatives of the deceased who are entitled to inherit, and their shares.
These laws take greater prominence in Islam because of the restriction placed on the testator (a person who makes a will). Islamic law places two restrictions on the testator:
- To whom he or she can bequeath his or her wealth.
- The amount that he or she can bequeath (which must not exceed one third of the overall wealth)
Your father and other legal heirs of your deceased grandfather shall have rights over his one third of property.
Heirs referred to as primary heirs are always entitled to a share of the inheritance, they are never totally excluded. These primary heirs consist of the spouse relict, both parents, the son and the daughter. All remaining heirs can be totally excluded by the presence of other heirs.
You don't get confused on the nature of the document used for this transfer.
If you confirm that this transfer was by executing a Will, then the law explained in my previous post will hold good to the position.
If the property was transferred by a registered settlement deed or by a Hiba, then the beneficiary shall be the absolute owner of the property transferred on his name, the other legal heirs cannot claim any share in the property as a right.
Therefore you ascertain the facts and details by obtaining a copy of the registered document from the registrar's office in respect of the property under dispute and obtain a legal opinion on further action from a local advocate for more clarity.
Some document may have executed through which property transferred. Will must be in writing but gift in Muslim dose not require execution and registration of gift deed.
Settlement is also valid.
Whether the transfer was by gift or Will does not matter. In any case, not more than one-third can be transferred, and two-thirds shall go to the legal heirs.
You can apply for a certified copy of documents from revenue office.
A Hibanama or a gift deed can be made and intention and possession is very important. If the donee has possession the hiba is complete and is valid.
Dear sir,
Concept of will under Muslim Law
A Will or Testament or Wasiyat has been defined as “an instrument by which a person makes disposition of his property to take effect after his death.”
Tyabji defines Will as “conferment of right of property in a specific thing or in a profit or advantage or in a gratuity to take effect on the death of the testator.”
The distinguishing feature of a Will is that it becomes effective after the death of the testator and it is revocable.
Unlike any other disposition (e.g. sale or gift), the testator exercises full control over the property bequeathed till he is alive: the legatee or beneficiary under the Will cannot interfere in any manner whatsoever in the legator's power of enjoyment of the property including its disposal or transfer (in that case the Will becomes revoked).
Object and Significance of Wills
The object of Wills according to the tradition of the Prophet is to provide for the maintenance of members of family and other relatives where they cannot be properly provided for by the law of inheritance.
At the same time the prophet has declared that the power should not be exercised to the injury of the lawful heirs.
A bequest in favour of an heir would be an injury to the other heirs as it would reduce their shares and would consequently induce a breach of the ties of kindred.
Thus the policy of the Muslim law is to permit a man to give away the whole of his property by gift inter vivos, but to prevent him, except for one third of his estate, from interfering by Will with the course of the devolution of property according to the laws of inheritance.
A Will offers to the testator the means of correcting to a certain extent the law of succession, and enabling some of those relatives who are excluded from inheritance to obtain a share in his property, and recognizing the services rendered to him by a stranger.
Formality of a Will
As a general rule, no formality is required for making a Will (Abdul Manan Khan v Mirtuza Khan).
No writing is necessary to make a Will valid, and no particular form, even verbal declaration is necessary so long as the intention of the testator is sufficiently ascertained.
Where the Will is reduced to writing it is called a ‘Wasiyatnama.’ If it is in writing it need not be signed. It does not require attestation and if it is attested there is no need to get it registered.
Instructions of the testator written on a plain paper, or in the form of a letter, that in clear cut terms provide for distribution of his property after his death would constitute a valid Will (Abdul Hameed V.Mahomed Yoonus).
In case, a Will is oral, the intention of the testator should be sufficiently ascertained. In comparison to a Will in writing which is easier to prove, the burden to prove an oral Will is heavy.
Requisites of A Valid Will
# The testator (legator) must he competent to make the Will.
# The legatee (testatrix) must be competent to take the legacy or bequest.
# The subject (property) of bequest must be a valid one (Qualitative requisite).
# The bequest must be within the limits imposed on the testamentary power of a Muslim (Quantitative requisite).
Testator and his Competence (Who can make Will?)
Every major Muslim (above 18 years) of sound mind can make a Will.
The age of majority is governed by the Indian Majority Act, 1875, under which, a person attains majority on completion of 18 years (or on completion of 21 years, if he is under supervision of Courts of Wards).
Thus, the testator must be of 18 or 21 years, as the case may he, at the time of execution of the Will.
At the time of execution of a Will (i.e. when it is being made), the testator must be of sound mind.
Under Muslim law, the legator must have a perfectly ‘disposing mind’ i.e. the legator must be capable of knowing fully the legal consequences of his activities not only for a brief period when the declaration was made, but much after that.
A Will that is executed in apprehension of death is valid, but under the Shia law, if a person executes any Will after attempting to commit suicide, the Will is void.
A minor is incompetent to make a Will (such a Will is void) but a Will made by minor may subsequently be validated by his ratification on attaining majority.
A Will procured by undue influence, coercion or fraud is not valid, and the court takes great care in admitting the Will of a pardanashin lady. Thus, a Will must be executed by a legator with his free consent.
The legator must be a Muslim “at the time of making or execution of the Will.” A Will operates only after the death of the legator; before his death, it is simply a mere declaration on the basis of which the legatee may get the property in future.
If a Will has been executed by a Muslim who ceases to be a Muslim at the time of his death, the Will is valid under Muslim law.
Also, the Will is governed by the rules of that school of Muslim law to which the legator belonged at the time of execution of the Will. For example, if the legator was a Shia Muslim at the time when he wrote the Will, only Shia law of Will is made applicable.
Legatee and his Competence (To whom Will can be made?)
Any person capable of holding property (Muslim, non-Muslim, insane, minor, a child in its mother's womb, etc.) may be the legatee under a Will. Thus, sex, age, creed or religion is no bar to the taking of a bequest.
Legatee (including a child in its mother's womb) must be in existence at the time of making of the Will. Thus, a bequest to a person unborn person is void.
A bequest may be validly made for the benefit of ‘juristic person’ or an institution (but it should not be an institution that promotes a religion other than the Muslim religion viz. Hindu temple, Christian church etc.).
A bequest for the benefit of a religious or charitable object is valid. It is unlawful to make a bequest to benefit an object opposed to Islam e.g. to an idol in Hindu temple, because idol worship is opposed to Islam.
No one can be made the beneficial owner of shares against his will. Therefore, the title to the subject of bequest can only be completed with the express or implied consent of the legatee after the death of the testator. The legatee has the right to disclaim.
A person who has caused the death of the legator cannot be a competent legatee. A Will operates only after the death of a legator, therefore, a greedy and impatient legatee may cause the legator's death to get properties immediately. However, it is also immaterial whether the legatee knew about him being a beneficiary under the Will or not.
