CIVIL CASE
2 years ago
मुस्लिम परिवार में एक पिता जिनकी मृत्यु 2003 में हो चुकी है, जिनकी सिर्फ तीन पुत्रियां हैं, जिसमे से दो पुत्रियों की शादी पहले ही हो चुकी है बस सबसे छोटी बेटी ही अपने मां बाप के साथ में रहा करती थी, इसलिए स्व० पिता जी ने एक वसीयत जो अपने देहान्त से 1 महीने पहले ही कर गए थे, जिसमे साफ़ साफ़ लिखा हुआ है की (बाद वफात के उपरोक्त मकान व जायदाद के मालिक में अपनी बीवी ____व मेरी सगी पुत्री____यह दोनो मकान जायदाद के मालिक व काबिज़ होंगे आदि) यह की अब उक्त व्यक्ति की बीवी का भी देहांत हो चुका है अब सिर्फ सबसे छोटी पुत्री जिसका नाम वसीयत नामे में है वह बची है जिसने शादी करली है और अपने बीवी बच्चों के साथ विवादित मकान में रह रही है, यह की जो दोनो अन्य पुत्रियां हैं वह आए दिन परेशान कर रही हैं और अपने हिस्से की मांग कर रही हैं जिसमे से मंझली लड़की उक्त मकान में कब्जा करके रह रही है जाने का नाम नहीं ले रही है,श्रीमान आपसे अनुरोध है की सुझाव देने की कृपा करें जिससे उपरोक्त मामले को सुलझाया जाए और जो अन्य बेटी ने कब्जा कर रखा है उसको केसे हटाया जाए
A.Dear Sir,
Dear Sir,
Under Muslim law, the concept of ancestral and self-acquired property is not recognised.
As long as the person is alive, the property owned by him is his absolute property and no right of any legal heirs accrues until his death. Upon his demise, the legal heirs become entitled to a definite fraction of the estate of the deceased.
Under Muslim law, distribution of property can be made in two ways, i.e. per capita or per strip distribution for sunnis and shias respectively. The quantum of their inheritance would depend upon the branch and the number of persons that belong to the branch.
Under Muslim laws, the right to claim inheritance may be exercised during the lifetime of the person claiming such right.
The rights of the person living in the property for thirty years vis-à-vis that of persons who have not claimed any right to the property would have to be examined in light of the specific facts of the case and the principles governing the Muslim law in India.
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.
Male and female children, a son's share is double that of a daughter's
daughter is the absolute owner of whatever property she inherits
Till a daughter is not married, she enjoys the right to stay in her parents' house and seek maintenance
In case of a divorce, charge for maintenance reverts to her parental family after the iddat period (approximately three months) is over.
However, if her children are in a position to support her, the responsibility falls on them.
In the famous Shah Bano case, the Supreme Court had held that in case of a divorce, it is the responsibility of the husband to make reasonable and fair provision to maintain his former wife even after separation under Section 3 (1Ha) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This period extends beyond iddat as the woman retains control over her goods and properties.
SHARE OF WIDOW
In the event of the death of her husband, a widow gets the one-eighth share (in case there are children) but will get one-fourth share (if there are no children).
If there is more than one wife, the share may come down to one-sixteenth.
I could have explained more if background is known to me. If background is made known in full then legal experts will be in position to understand correctly. Moreso, the background must be in brief.
Please give me FIVE STAR if satisfied by my answers.
Dear Sir,
Under Muslim law, the concept of ancestral and self-acquired property is not recognised.
As long as the person is alive, the property owned by him is his absolute property and no right of any legal heirs accrues until his death. Upon his demise, the legal heirs become entitled to a definite fraction of the estate of the deceased.
Under Muslim law, distribution of property can be made in two ways, i.e. per capita or per strip distribution for sunnis and shias respectively. The quantum of their inheritance would depend upon the branch and the number of persons that belong to the branch.
Under Muslim laws, the right to claim inheritance may be exercised during the lifetime of the person claiming such right.
The rights of the person living in the property for thirty years vis-à-vis that of persons who have not claimed any right to the property would have to be examined in light of the specific facts of the case and the principles governing the Muslim law in India.
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.
Male and female children, a son's share is double that of a daughter's
daughter is the absolute owner of whatever property she inherits
Till a daughter is not married, she enjoys the right to stay in her parents' house and seek maintenance
In case of a divorce, charge for maintenance reverts to her parental family after the iddat period (approximately three months) is over.
However, if her children are in a position to support her, the responsibility falls on them.
In the famous Shah Bano case, the Supreme Court had held that in case of a divorce, it is the responsibility of the husband to make reasonable and fair provision to maintain his former wife even after separation under Section 3 (1Ha) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This period extends beyond iddat as the woman retains control over her goods and properties.
SHARE OF WIDOW
In the event of the death of her husband, a widow gets the one-eighth share (in case there are children) but will get one-fourth share (if there are no children).
If there is more than one wife, the share may come down to one-sixteenth.
I could have explained more if background is known to me. If background is made known in full then legal experts will be in position to understand correctly. Moreso, the background must be in brief.
Please give me FIVE STAR if satisfied by my answers.
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