Inheritance under muslim law - hanafi sect
Querist :
Anonymous
(Querist) 25 January 2012
This query is : Resolved
I wanted to buy a property but the seller is a lady. The property belonged to her mother in law. Before mother in law died she willed the property to her only son ( husband of the seller) son willed it to our seller. Later he died. The son and daughter in law don't have children.
Mother in law had brother and sisters.
Q. Will the property devolved on the daughter in law 100 percent?
Or the cousins of the deceased son become hiers to the proprty?
Can I buy from daughter in law or not?
prabhakar singh
(Expert) 25 January 2012
NO muslim can make any WILL for more than of 1/3rd of the whole lot,the rest is bound to go to fixed inheritors.
SO IN MY VIEW BOTH OF THE WILLS ARE BAD IN MUSLIM LAW AND BUYING BASED ON RIGHT OF WILLS WOULD A BAD DECISION.
HOWEVER I CALL UPON PERSONALLY FOR MR. RAMACHANDRAN'S VIEW ALSO.
R.Ramachandran
(Expert) 25 January 2012
I agree with Mr. Prabhakarji's view that a muslim cannot will more than 1/3rd of his property.
The possible way in which the husband can transfer the property in favour of his wife in this case during his life time is by giving GIFT. Unlike in the other cases where the GIFT will involve paying stamp duty and registration charges, in this case, being a muslim there is no requirement for registration. Therefore he can avoid payment of stamp duty and registration fees.
However the minimum three preconditions for a muslim gift must take place. (i) declaration (ii) acceptance and (iii) delivery of possession of the property to the donee.
The muslim husband should only take care whether his wife will take care of him after getting the property in GIFT or he will be left in lurch!
Guest
(Expert) 25 January 2012
agreed with above experts..
Manoj Kumar,
Advocate,
Delhi.
Ph: 0931 044 3650
advocates.agra@gmail.com
ajay sethi
(Expert) 25 January 2012
well advised by Mr prabhakar singh
Khaleel Ahmed Mohammed
(Expert) 26 January 2012
I totally dis agree with the above experts.As a matter of fact a will can not be valid infavor of non heirs. Here , in this case the mother in law made will infavor of his own son, which is totally valid as per muslim law. The son can give his property to his wife through will as she also his heir and only successor. The purchaser can purchase the property without any fear.
Shonee Kapoor
(Expert) 26 January 2012
I tend to agree with Khaleel Ahmad, if the other heirs does not object, the property can be willed to any one of the heir's
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
prabhakar singh
(Expert) 26 January 2012
In reply to Mr.Khaleel Ahmed I would like to refer Mulla's 17th edition by M.Hidayatullah
chapter IX pages 122 to 132.
A muslim having attained puberty and of sound mind may dispose of his property by will,subject to limitation set forth herein afters.(s.115)Form is immaterial-may be oral also(116).Bequest to heirs without consent of other heirs is not valid(s.117).Limits on Testamentary Power-A Mohamedan CAN NOT BY WILL DISPOSE OF MORE THAN A THIRD OF A SURPLUS OF HIS ESTATE after payment of funeral expenses and debt.
BEQUESTS IN EXCESS OF THE LEGAL THIRD CAN NOT TAKE EFFECT, UNLESS THE HEIRS CONSENT THERETO AFTER THE DEATH OF THE TESTATOR(s,118)
prabhakar singh
(Expert) 26 January 2012
THE FOLLOWING MAY ALSO PROVE USEFUL REFERENCE:..
In traditional Sunni Islamic law the power of the testator is limited in two ways:
firstly, he cannot bequest more than 1/3 of his net estate unless the other heirs consent to the bequest or there are no legal heirs at all or the only legal heir is the spouse who gets his/her legal share and the residue can be bequeathed.
Narrated Sa‘d ibn Abi Waqqas (RA): "I was stricken by an ailment that led me to the verge of death. The Prophet came to pay me a visit. I said, "O Allah's Apostle! I have much property and no heir except my single daughter. Shall I give two-thirds of my property in charity?" He said, "No." I said, "Half of it?" He said, "No." I said, "One-third of it?" He said, "You may do so, though one-third is also too much, for it is better for you to leave your offspring wealthy than to leave them poor, asking others for help..." (Sahih al-Bukhari, Sahah Muslim, Muwatta, Tirmidhi, Abu Dawud and Ibn Majah.)
secondly, the testator cannot make a bequest in favour of a legal heir under traditional Sunni Muslim law. However, some Islamic countries do allow a bequest in favour of a legal heir providing the bequest does not exceed the bequeathable one-third.
Legal heir in this context is one who is a legal heir at the time of death of the testator.
Narrated Abu Hurayrah (RA): Allah’s Prophet (SAWS) said, "Allah has appointed for everyone who has a right what is due to him, and no bequest must be made to an heir. (Abu Dawud). Similar hadith narrated by Abu Umamah (RA) and reported by Ibn Majah, Ahmad and others.
prabhakar singh
(Expert) 26 January 2012
Then why Mr. Khaleel has differed is best known to him only.
Khaleel Ahmed Mohammed
(Expert) 27 January 2012
Dear Mr.Prabhakar,
More than one third of property the consent of the other heirs are required, but here the queriest asked that, the mother in law has only one son. How the condition of the consent of the other heirs apply in the query ? In fact there is no other heirs, to success the mother in law.
prabhakar singh
(Expert) 28 January 2012
Dear Mr.Khaleel!
I can not be inclined to analyse that if a muslim man/lady has only one son,then on his /her death it shall be presumed that he/she will be presumed to have no heir prefixed in QURAN.
To me query suggest that she had no other issue than a son from her wed lock but does not tell about other heirs who survived her???
Then jumping on a conclusion like one of yours' on such a reasoning in a Muslim succession case may be misleading and msguiding information.
To arrive at your conclusion the query must be worded
that she had no Quraniq heir other than his only son.
And in the next Will case also the query must speak that the son had no Quraniq heir other than his wife.
We must not forget that Quraniq heirs are listed with their respective shares and that can not be snatched from them even by a son.
Khaleel Ahmed Mohammed
(Expert) 28 January 2012
Dear Prabhakar ji,
If a Muslim either male or female demised leaving at least one male issue there is no right to success him or her by her other Quranic heirs except wife or husband. There is no misleading at any way. If you have any doubt then you may contact with Darul Afta , Saharan Pur UP for clarification of your doubt about other Quranic heirs.
