• Grandson's right to inheritance in grandfather's property

Hi,

A Shia Ismaili Muslim man called Amin, died before his father Abdul, leaving behind his widow Shahin and a son.
Two years later, Amin's father Abdul died, who left a house and plot.
The will deed for inheritance is on Abdul's older living son Samir's name.

Three years after Amin's death, Amin's widow Shahin remarried and the son of Amin got adopted by his stepfather.

After the death of Abdul, Amin's widow (who has remarried) is asking for share for herself and her child (who is adopted legally by Shahin's new husband and lives with them).

Do they have the right to inheritance?

If Abdul had not left behind any will deed, would they still have the right to inheritance?

I would very much appreciate a legal advise.

This is because we would like to do justice. I am the sister of Amin.
Laila
Asked 1 year ago in Property Law from United Kingdom
Religion: Muslim
1) Muslim cannot bequeath more than one third of his property by will 

2) Abdul could not have left his entire property to his eldest son 

3) Amin wife and child would inherit Amin share in property 

4)on Amin widow remarriage she would loose her share in her deceased husband estate 
Ajay Sethi
Advocate, Mumbai
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1. After the remarriage of Amin's wife, she and her son who has been adopted by Shahin's new husband is not entitled to any share of the property of Abdul who died intestate,

2. The said property of Abdul will be inherited by his legal heirs.
Krishna Kishore Ganguly
Advocate, Kolkata
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228 Consultations
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1. the said property is no longer the grandfather's property of Kabir,

2. The said property has already been conveyed to Abdul by the grandfather of Kabir by virtue of a will for which Abdul is the absolute owner of the said property,

3. Moreover, after his adoption by his adoptive father, he is no more entitled to inherit the property of his father.
Krishna Kishore Ganguly
Advocate, Kolkata
12077 Answers
228 Consultations
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1) Muslim law does not recognize the doctrine of representation Under Muslim law, the nearer heir totally excludes a remoter heir from inheritance. That is to say, if there are two heirs who claim inheritance from a common ancestor, the heir who is nearer (in degree) to the deceased, would exclude the heir who is remoter.

2) since amin(son)  died before his father abdul on demise of the grand father grand son would not have any share in property of the grand father 

3)the site quoted by you mentions that muslim cannot bequeath more than 1/3rd property by will 

4) it appears that  surviving son samir and daughterlaila  would inherit his father property  as per muslim personal law . 

5) in modification of my earlier reply it may be mentioned that neither widow of amin nor child has any share in property of abdul (father in law) 
Ajay Sethi
Advocate, Mumbai
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1216 Consultations
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madras high Court reported in 2001 (3) MLJ 141 [Noorunissa alias Pichamma v. Rahaman Bi and others] it is observed thus:

"14. ...	...	...	...	...	...	...	...

(i)In Chapter XXIII of Mohammedan Law of Wills Second Edition 1965, by T.R.Gopalakrishnan, under the head "Limits of testamentary power in Mohammedan Law, it has been commented that the power of Mohammedan to dispose of by Will is circumscribed in two ways and the first limit is to the extent. A Mohammedan can validly bequeath only one third of his net assets, when there are heirs. This rule is based on a tradition of the prophet and the Courts in India have enforced the rule from early times. The object of the rule is to protect the rights of the heirs and where there is no heirs and when all the heirs agree and give their consent the one-third limit may be exceeded. While the rule is that a Muslim can bequeath only one-third of his assets, a bequest in excess of one-third is rendered valid by consent of the heirs whose rights are infringed thereby or where there are no heirs at all.
Ajay Sethi
Advocate, Mumbai
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 Supreme Court of India reported in 2011(4) CTC 790 [Shehammal v. Hasan Khani Rawther & Others] wherein Their Lordships have held as follows:

"24.	...	....	....	Paragraph 118 of Mulla's "Principles of Mohammedan Law" embodies the concept of the limit of testamentary power by a Mohammedan. It records that a Mohammedan cannot by Will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of one-third cannot take effect unless the heirs consent thereto after the death of the testator. The said principle of testamentary disposition of property has been the subject matter of various decisions rendered by this Court from time to time and it has been consistently stated and reaffirmed that a testamentary disposition by a Mohammedan is binding upon the heirs if the heirs consent to the disposition of the entire property and such consent could either be express or implied. Thus, a Mohammedan may also make a disposition of his entire property if all the heirs signified their consent to the same. In other words, the general principle that a Mohammedan cannot by Will dispose of more than a third of his estate after payment of funeral expenses and debts is capable of being avoided by the consent of all the heirs. In effect, the same also amounts to a right of relinquishment of future inheritance which is on the one hand forbidden and on the other accepted in the case of testamentary disposition."
Ajay Sethi
Advocate, Mumbai
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The primary (or immediate) heirs classified as Level I are:-

1.         The SPOUSE (Husband or a maximum of four Wives)

2.         The CHILDREN (Sons and Daughters)

3.         The PARENTS (Father & Mother)

4.         The GRANDCHILDREN (Sons’s SON or Son’s DAUGHTER only)

(applicable only when the SON is already deceased only and has offspring)
In your case  the grandson namely Kabir's entitlement on the property.  
Yes as a class I legal heir (Sl No.4 above), he is entitled to a share in the property as per his entitlement, somebody adopting him will not disentitle him from claiming the share in the property. 
In fact the spouse of deceased Amin is also entitled to a share  the property that would have been given to him.
T Kalaiselvan
Advocate, Vellore
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