• Buying a property from Muslim sellers

Some background to my questions. Grandfather (of the current owners ) self-acquired the property in 1973. He passed on the property to his only daughter ( No will.Just a statement is his 1973 sale deed). The daughter passed away and three legal heirs inherited ( husband, son, and daughter) the property. After passing away of father, brother and sister, as legal heirs, inherited the property. Both brother and sister have children who are minors now. My questions are
1. As muslim law is different from hindu law and not codified, how do I ensure the property is free from any encumbrance like Hiba or gift
2.what steps / precautions / clauses to be addressed in the sale deed specific to muslim law 
3. Do I need to worry about grand children who are minor. Can they claim the property when they become major
4. Are there any specific declarations to be taken from the sellers ( brother and sister)

Appreciate your help
Asked 1 year ago in Property Law
Religion: Hindu

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12 Answers

1) indemnity clause should be incorporated in sale deed to indemnify buyer in case of third party claims 

 

2) gift deed is not required to be registered for Muslims 

 

3) if any gift deed is executed check with society whether any application received for transfer of flat 

 

4) check whether seller has original documents of title 

Ajay Sethi
Advocate, Mumbai
94511 Answers
7484 Consultations

5.0 on 5.0

Yes muslim law totally different from the Hindu law. You have to find out about the family tree  and ask the sellers if they can take noc from their relatives. I am saying this because a whole property cannot be willed away as per the muslim law. After the death of the father his brothers too had a share and hence they could claim. Obtain noc.

Declarations from them and from their relatives.

Rahul Mishra
Advocate, Lucknow
14081 Answers
65 Consultations

5.0 on 5.0

Law of devolution of property by succession is not applicable to Muslim as it is applicable to Hindu. Rights of legal heirs crystalize after death of owner of property. If an owner sales his ancestral  or self acquired property, his legal heirs, major or minor cannot claim any share in the property after the death of seller.

1. Even Hindu law to a large extent is not yet codified. Hiba is valid only if the donee is put in possession. Without possession there is no valid Hiba. 

Above answer will clarify your doubts to q. 2,3 and 4. 

Ravi Shinde
Advocate, Hyderabad
4041 Answers
42 Consultations

5.0 on 5.0

You can do a title search of the property to determine if there are any encumbrances. You can also contact the local municipality or government office to inquire about any encumbrances on the property. Lastly, you can hire a lawyer to review all relevant documents and/or register any encumbrances with the local government office.

 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

1.  Since oral gift is recognised under Mohammadan Law, obtain Affidavit from the seller that there has been no oral gift done by them or any precedesors-in-title. Obtain Encumbrance Certificate for 30 years and you will get to know if there were to be any earlier transactions over the property.

2.  Ensure that the minor children do not claim right over the property after they become major in age.

3.  If it's clearly mentioned in the sale deed that the proceeds of the property would be used for minor's maintenance and welfare, then the minors cannot claim when they become major.

4.  Obtain Affidavit from them stating that the minor's share would be given to the minors after they become major.

Shashidhar S. Sastry
Advocate, Bangalore
5067 Answers
314 Consultations

5.0 on 5.0

1.  You consult an experienced lawyer well versed with Muslim law of inheritance and seek a legal opinion so taht you can proceed only if recommended after the lawyer is satisfied with the genuineness of the seller.

2. This is the transfer of property law and not Muslim law, hence you may obtain a proper legal opinion accordingly.

3. No.

4. If they both are the legal heirs, then they both may have to execute the registered sale deed jointly. 

T Kalaiselvan
Advocate, Vellore
84709 Answers
2172 Consultations

5.0 on 5.0

You can take a NOC and indemnity bond from all legal heris of the property. There is no concept of self acquired or ancestral property in Muslims.Its decided on basis of their Sharia law

Prashant Nayak
Advocate, Mumbai
31800 Answers
175 Consultations

4.1 on 5.0

the quantum of the share of a female heir is half of that of the male heirs. The reason behind this is that under the Muslim law a female shall upon marriage receive mehr and maintenance from her husband whereas males will have only the property of the ancestors for inheritance.

 

2) A husband (in the case of succession to the wife's estate) takes a half share in a case where the couple is without lineal descendants, and a one-fourth share otherwise. A sole daughter takes a half share. Where the deceased has left behind more than one daughter, all daughters jointly take two-thirds.

Ajay Sethi
Advocate, Mumbai
94511 Answers
7484 Consultations

5.0 on 5.0

Yes it depends on facts. Only after studying the entire facts. The rights of sharia law are not by birth.And after death rights are extinguished 

Prashant Nayak
Advocate, Mumbai
31800 Answers
175 Consultations

4.1 on 5.0

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. If an heir lives even after the death of the ancestor, he becomes a legal heir and is therefore entitled to a share in the property.

According to Muslim law, the heirs are the successors of the deceased who are legally recognized by the Sharīah to inherit his estate, given that they are not impeded from inheritance. 

The heirs are further broadly categorized into two important categories, Sharers and Residuaries. 

  1. Sharers include the husband, wife, father, mother, daughter, the uterine brother, the uterine sister, the full sister, and the consanguine sister. Of all these Sharers, there are four who inherit sometimes as sharers and sometimes as Residuary. These are the father, the daughter, the full sister, and the consanguine sister.
  2. Residuaries are the ones who inherit in the absence of the immediate Sharer, and if the estate remains after being devolved between them.

The third category of Distant Kindred exists, who are neither Sharers nor Residuaries but are connected by blood relation. Step-Children and Step-Parents however do not inherit the property from each other. 

T Kalaiselvan
Advocate, Vellore
84709 Answers
2172 Consultations

5.0 on 5.0

Please request lawyer's legal consultation in this website.

Kumaresan
Advocate, Coimbatore
29 Answers

Not rated

To ensure the property is free from any encumbrance like Hiba or gift under Muslim law, you should consult with a local lawyer who is well-versed in Muslim personal law. They can help you review the ownership history of the property, identify any potential legal issues, and provide guidance on how to clear the title if necessary.

 

When drafting the sale deed specific to Muslim law, it is advisable to include clauses that address issues such as the transfer of ownership, warranties, representations, and indemnities. You should work with your lawyer to ensure that the deed complies with Muslim law and adequately protects your interests as the buyer.

 

Under Muslim law, the rights of minors to inherit property are protected, and their interests must be taken into consideration when dealing with property transfers. It is essential to ensure that the sale deed clearly states the ownership rights of the minors and outlines how their interests will be protected during the sale and transfer process.

 

As the buyer, it is advisable to request declarations from the sellers (brother and sister) confirming that they are the rightful owners of the property and have the authority to sell it. You should also ask for any relevant documents that support their ownership claims and verify them with the help of your lawyer. This can help to ensure that the sale is conducted lawfully and without any legal disputes in the future.

 

 

 

Anik Miu
Advocate, Bangalore
8742 Answers
109 Consultations

4.7 on 5.0

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