My grand father took over a land on may 1858 and made a house in half land and the other half is covered. My father have 3 more brother 2 elder and one younger. Total 4 brothers , My Father is no more now, The Second elder brother Mr. B should us xerox of a will of my grand father which on seeing itself we can find out its not on stamp paper. 2-12-1990, with 2 witness no one is alive now, It's written that in hindi my home no. x its lower part i am giving to my son Mr. B and other son's are established and i have made arrangement for them. (Its not written any thing where on same place same land ) nor he has made any arrangement for other 3 brothers. Present condition on top floor of half land 2 family living ground floor Mr. B with captured covered land and he is not ready for any partition or mutual concerns. My question is how i can challenge the will ? As per Shia Islamic law a father cannot give more than 1/3 or 3/4 property without consulting other Son's , As he says whole ground floor is his it means whole land belong to him what about others? CASE 2: if we go for case 2 when my grand mother was alive she said this property is given to me in meher (verbally) filled a form of municipal corporation and transferred the name from my grand father to grand mother now the tax is paid in the name of grand mother but registry is still in the name of grand father. On which way we can challenge and get our part? (As per Muslim Shia Law)
Ask a question and receive multiple answers in one hour.
Lawyers are available now to answer your questions.
1) file suit for partition to claim your share in property .
2)father cannot bequeath more than one third of his property by will
3) even if brother takes defence of the will it will not help him as entire property has been bequeathed to one son contrary to muslim law
Under the customary Muslim law, a person cannot bequeath more than one-third of his property by will. But if he has married under Special Marriage Act, then he can will away entire property, and succession is governed by Indian Succession Act, and not the Muslim personal law i.e. Shariah Act 1937.The remaining 2/3 share should be made available for distribution amongst the heirs. Even for bequeathing the 1/3rd share, the Muslim has to obtain the consent of the other heirs. Relevant Case on this point is: GULAM MD.vs. GULAM IIUSSAIN, AIR 1932 PC 81 ... Held in this case that, bequest in favour of heirs without the consent of other heirs is invalid.
Bequeathable One-third:-- It means a third of the estate of the testator as is left after the payment of the funeral expenses, other charges and debts of the deceased (testator). All schools of Muslim Law except the Ithana Ashari School lay down that bequest of more than one third unless consented to by the heirs is invalid or a custom or usage so permits.
Formalities of Wills:-- Muslim law requires no specific formalities for creation of a will. It may be made in writing or oral or even by gestures. Though it is in writing, it need not be signed by the testator and attested by the witnesses (Ramjilal vs. Ahmed, AIR 1952 MP 56). It is necessary that the intention of the testator should be clear and unequivocal.
1. A will is not required by law to be written on a stamp paper. It can be drawn up on a plain paper also. One can buy a kindergarten notebook to write his will thereon.
2. The test to determine whether your grandfather executed the will in consonance with Sharia is whether the bequeathed portion was 1/3rd of the property as on the date of execution of will.
3. You can challenge the will only if the willed portion is more than 1/3rd of the property owned by your grandfather or if the will has not been executed in accordance with the law.
4. The transfer of property to your grandmother after the demise of your grandfather is illegal as she was not the sole heir of your grandfather. Mere mutation of her name in the records does not make her the owner unless it was preceded by an instrument of transfer.
1. As per CASE 1 your grandfather's will ( even if it is proved to be a valid Will) is not as per Muslim Shia Law,
2. His giving the entire property is not as par Muslim Shia Law hence the said Will is void at law,
3. File a partition suit claiming your share on the said property of your grandfather, since you father is no more.
My question is how i can challenge the will ? As per Shia Islamic law a father cannot give more than 1/3 or 3/4 property without consulting other Son's , As he says whole ground floor is his it means whole land belong to him what about others?
You can challenge a Will only when he is forcibly acting upon it. You can file a partition suit seeking your legitimate share in the property. Let him come to the court with his so called will, then the will may be challenged. You are right that as per Muslim personal law a person cannot bequeath his property beyond the extent of 1/3rd to anyone.
CASE 2: if we go for case 2 when my grand mother was alive she said this property is given to me in meher (verbally) filled a form of municipal corporation and transferred the name from my grand father to grand mother now the tax is paid in the name of grand mother but registry is still in the name of grand father.
If she claims that the property was given to her in Meher by her deceased spouse, it can be construed as valid statement because the same was acted upon by her by taking possession and changing the records in the Municipality. This is an established proof that the property now belongs to her. She can very well file a declaratory suit to declare her title in the property based on the documentary evidences in her possession.
On which way we can challenge and get our part? (As per Muslim Shia Law)
Filing a partition suit will be an option before you. Filing a declaratory suit by your grandmother will be another option before you.
