Joint Owner - Muslim law - Transfer of Right
Querist :
Anonymous
(Querist) 13 July 2011
This query is : Resolved
My Mother in LAw is a joint owner of a house property . She wants to pass her rights to my wife ( Not a blood relative daughter ) .
What is the best way by which My mother in law can pass a clear title of her share of joint ownership in the property
Is it True that as per muslim law she cannot make a will and pass the her entire 50 % share of property
Also she cannot make a gift deed since my family stay aboard and my wife cannot take the physical possession of the property
Please advice
M.Sheik Mohammed Ali
(Expert) 13 July 2011
where are you from ? which state ? which subclass in muslim ? if the joint owner having exactly property her share in joint property, then she will made up gift or will, if she will ready to give gift, she has have rights of property only to give 1/3 of shares, and immediately transfer, and if she will ready to give her share to any one as her wish's.
prabhakar singh
(Expert) 13 July 2011
Is it True that as per muslim law she cannot make a will and pass the her entire 50 % share of property??????????????
ANSWER:YES, TRUE.A MUSLIM CAN MAKE WILL ONLY ABOUT 1/3 OF HIS TOTAL OWNERSHIP.NO MORE.
AND WHEN THERE IS NONE TO TAKE POSSESSION ,NO TRANSFER MODE IS POSSIBLE UNLESS A LEGAL AGENCY IS CREATED TO ACT ON BEHALF OF ONE WHO WANTS IT.
R.Ramachandran
(Expert) 13 July 2011
Please indicate whether it relates to Shia or Sunni.
Querist :
Anonymous
(Querist) 13 July 2011
It realtes to Sunni , Pune , maharashtra ,
can you please advice what can be done to tranfer the rights under this suituation
Thanks in advance
R.Ramachandran
(Expert) 13 July 2011
As far as making Gift is concerned, there is no gender discrimination in Muslim Law. Therefore, a muslim woman can make a gift. The only condition is that she should be the owner of the property.
Further, there is no restriction about the quantum of gift. (The maximum quantum of 1/3rd applies only in the case of Testementary disposition i.e. WILLs and not in other cases). Either part of the property can be gifted or whole of the property can be gifted.
The three essential conditions of muslim gift must be followed.
(1) There must be a declaration by the donor;
(2) The donation must be accepted by the donee;
(3) There must be immediate delivery of possession by the donor.
In order to validly complete the gift, the donor must vacate the possession along with all his/her belongings that would signify his/her relinquishment of total control and put the donee in possession.
Since your wife is not the heir, none of the exfeptions to the rule of delivery of physical possession applies in your case.
You said that your mother-in-law is the joint owner of a property. That means, the property might not have been divided between the joint owners. It is called 'Mushaa' under Muslim Law.
Under Shia law, the gift of an undivided share in the property capable of division is valid.
Under Sunni law, the gift of Mushaa in a property capable of division is valid only in the following situations:
(a0 Where the gift is made by one co-heir to another co-heir;
(b) where the gift is of a share in a Zamindari or Taluka;
(c0 where the gift is of a share in freehold property in a large commercial town;
(d) Where the gift is of shares in a land company.
Querist :
Anonymous
(Querist) 13 July 2011
can you please advice what can be done to tranfer the rights under this suituation ?
can we apply for a rectification of name in the registered sales deed ? If it is possible then do we need to pay stamp duty on entire value of property or the joint share ie 50 %
