Father's property
Bousalya
(Querist) 29 June 2018
This query is : Resolved
Dear Experts,
A father has six sons and two daughters. Among them, he disliked three sons, who all worked overseas and made him rich. Now he says he will give his property lion shares to other three sons. His self earned property. Is it permitted under the law? Can he write a Will ?
Thanks Experts
I.S.Roy,Advocate
(Expert) 29 June 2018
Those sons who worked at overseas able to prove that they sent the amounts to father. Then, father can not show such property is his self acquired. Hence, there is no point of WILL to execute in favor of any one
Vijay Raj Mahajan
(Expert) 30 June 2018
The title of the property if exists in the name of father, it will be presumed that the property is owned by the father and he can write Will in favor of anyone he so desires.
Any objection by the sons who are otherwise the legal heir of their father will be entertained at the time of the probation of the Will or after the death of the father during his lifetime he is in possession of the property that he solely owns.
Bousalya
(Querist) 30 June 2018
Dear Expert,
The concept of "Will" is also applicable to all religions? All titles of the property in the name of father.
Thanks Expert
kavksatyanarayana
(Expert) 01 July 2018
Will is testament by a testator. so will applicable to all religions expect Islams.
Bousalya
(Querist) 03 July 2018
Dear Experts,
We are mohammadans. My understanding is that during the father's life time, he can not write any will.?
Kumar Doab
(Expert) 05 July 2018
The living father has just mentioned that “he will give his property lion shares to other three sons”
as per your post:
“Dear Experts, A father has six sons and two daughters. Among them, he disliked three sons, who all worked overseas and made him rich. Now he says he will give his property lion shares to other three sons. His self earned property. Is it permitted under the law? Can he write a Will ? Thanks Experts”
This could be due to various reasons/misunderstandings/confusions/altercations/ differences that you would be the best person to understand, as you have posted the query after knowing the facts.
If possible crease all differences and let equal share go to all.
Kumar Doab
(Expert) 05 July 2018
A Muslim male that is owner of the title/estate/property may like to dispose by WILL oral or written, as per provisions of personal law/shariat applicable to sect/sub-sect to which he belongs. The consent of legal heirs may be required.
He may even like to narrate to dispose by WILL the estate/property that he does not own at the time of signing WILL but he may own at the time of death.
The WILL operates after death of testator.
He may mean 1/3rd (unconditional…………) of the title/estate/property, by terming IT as lion’s share, as in his WILL. He may not need consent of anyone to dispose upto 1/3rd, per provisions of personal law that applies.
He can chose the executor in the WILL who may pay the debts if any, expenses of funeral and divide the assets as per WILL (per provisions of personal law that applies).
Rest 2/3rd may go to other legal heirs, at the time of his death……………Until or unless his other legal heirs step forward to ratify the WILL/agree to sign and dispose their rights in favor of beneficiary in the WILL; as you are mentioning in your query.
Kumar Doab
(Expert) 05 July 2018
Did he marry under provisions of Special Marriage Act or as per Islamic traditions applicable to sect/sub sect he belongs?
If the property/estate is in areas of Bombay, Madras, Calcutta the WILL may have to be probated as per provisions of Indian Succession Act, 1925.
https://www.legalcrystal.com/act/52003/indian-succession-act-1925-complete-act
For the time being you may go thru;2,57,212(2),218
Kumar Doab
(Expert) 05 July 2018
You may go thru;
Bombay High Court
Bilquis Zakiuddin Bandookwala vs Shehnaz Shabbir Bandukwala on 16 December, 2010
Bench: R. S. Dalvi
19………….Hence section 213 of the Indian Succession Act also puts restrictions upon executors and legatees of certain communities.
There are no such restrictions upon Mohammedans. Hence, if an executor or a legatee of a Hindu etc. seeks to execute a right under a Will, even if not executed in Mumbai ( or any other metropolitan cities) or for properties not in Mumbai ( or any other Metropolitan cities) he would have the restrictions upon him to probate the Will he propounds. There is no restriction upon Wills of Mohammedans under Section 213 also. The exception under Section 213 (2) inter alia upon Mohammedans gives them a facility to propound a Will which is not probated.
24. The defendant, therefore, shall not require to obtain probate of the Will of her deceased husband.
https://indiankanoon.org/doc/552306/
and you shall get clarity.
Kumar Doab
(Expert) 05 July 2018
Anyone can write a WILL in his life time.
WILL is a legal document having legal ramifications.
The WILL should be valid and in accordance with provisions of personal law that applies e.g; Shia, Sunni…………..amongst muslims
Kumar Doab
(Expert) 05 July 2018
Rest sending money from abroad to father and father becoming rich is a statement that may have to be related with investment in said property with surrounding facts.
Any WILL can be contested.
Once the WILL or IF the WILL lands up in probate court of pecuniary jurisdiction the court shall pierce the veil and decide on merits..
If possible avoid disputes and litigation.
Kumar Doab
(Expert) 05 July 2018
Otherwise ;
The authority under whose jurisdiction property falls has a set procedure for such matters if the WILL has surfaced; Testate Succession…….and the prescribed forms, procedure, process is available in O/o Authority and even on website. Certified copies of the WILL, death certificate, legal heir certificate/affidavit (per local procedure/precedence) are basic requirements. The authority may ask for NOC from legal heirs (other than beneficiary) and/or to release newspaper advt and/or may write to legal heirs to submit their objections if any within set time.
If there is NO contest to the WILL by any legal heir then authority shall act upon the WILL without any cloud on it and transfer the ownership in the name of beneficiary.
If WILL is contested it lands up in probate court of pecuniary jurisdiction. The court shall decide on validity of WILL.
Thereafter concerned official in the O/o Authority e.g; Patwari, shall act upon the matter and transfer the ownership by inheritance/probate in the name of legal heirs in mutations records.
Thereafter obtain copy of updated mutation records.
If WILL is not submitted to be acted upon then it becomes matter of succession per personal law that applies.
Although it is wrong since the WILL exists.
Check locally for understanding procedure and compliance with procedure.
Bousalya
(Querist) 08 July 2018
Dear Expert,
Thanks, The father marriage took place in a traditional Sunnath Sect Sharia complaint manner. Once again thanking you for sharing such expertise. The father's family belongs to Tamilnadu and are living in Tamilnadu.
Best Regards.
Kumar Doab
(Expert) 08 July 2018
The following line in your last post is not properly drafted so as to convey clear message..
“The father marriage took place in a traditional Sunnath Sect Sharia complaint manner.”
With limited understanding;
Talk to your religious scholars and a very able senior LOCAL counsel of unshakable repute and integrity specializing in testamentary/civil matters and well versed with latest citations, LOCAL applicable rules/laws/ … and having successful track record…. and worth his/her salt…..
Kumar Doab
(Expert) 08 July 2018
Dear LCI Quderist @ Mrs. Bousalya,
You are welcome!
Bousalya
(Querist) 10 July 2018
Dear Expert
Thanks The Father's marriage took place in traditional way and not in Registration Department.
Thanks.
Bousalya
(Querist) 10 July 2018
Dear Expert.
Thanks. The Marriage Record is in the Muhalla Book which is accepted by local government authorities. We are belonging to "Sunnath" Muslims and not "Shia"'
Thanks
