Family Law
Gopal Ranjan Panigrahi
(Querist) 16 November 2009
This query is : Resolved
Sirs,
A property was purchsed in name of Mohemmedan Husband & wife. In between the husband expired.Whether the Mohemmedan wife alone can sell the property to another person.If not what permission and from whom should be taken prior to sale of such property by such Mohemmedan wife .
Thanking You
Raj Kumar Makkad
(Expert) 16 November 2009
Definitely such wife can sell the property left by her husband in joint share with her.
Devajyoti Barman
(Expert) 16 November 2009
DEVAJYOTI BARMAN (M)9831174081
B.A(Hons),MBA,LL.B (R)24007986
Advocate, High Court, Calcutta
Surely a mohammedan wife can sell a property jointly purchased with her husband since deceased provided the husband did not leave any other legal heirs in the form of their children in which circumstances the childrens' consent would be required.
A V Vishal
(Expert) 16 November 2009
Muslim law recognises two types of heirs, the first being Sharers, and the second being Residuaries.
A relative who is a Sharer will take a specified portion of the deceased's estate irrespective of anything else (excepting for one important exception being the Rule of Awl and Radd which are explained in full later).
A relative who is a Residuary will take whatever is left over, once the Sharers have taken their specified shares.
The Sharers are 12 in number and are as follows:
(1) Husband, (2) Wife, (3) Daughter, (4) Daughter of a son (or son's son or son's son's son and so on), (5) Father, (6) Paternal Grandfather, (7) Mother, (8) Grandmother on the male line, (9) Full sister (10) Consanguine sister (11) Uterine sister, and (12) Uterine brother.
Any attempt to set out the exact share of each such Sharer and its fluctuation depending on various factors will be far, far beyond the scope of this column, and I will restrict myself only to saying that the share taken by each sharer will fluctuate in certain circumstances.
For instance, a wife takes a one-fourth share in a case where the couple are without lineal descendants, and a one-eighth share otherwise. A husband (in the case of succession to the wife's estate) takes a half share in a case where the couple are without lineal descendants, and a one-fourth share otherwise.
A sole daughter takes a half share. Where the deceased has left behind more than one daughter, all daughters jointly take two-thirds. However, these two rules apply only in cases where the deceased has left behind no sons.
If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be sharers and become residuaries instead, with the residue being so distributed as to ensure that each son gets double of what each daughter gets.
Lineal descendants (such as sons) exclude brothers and sisters, and therefore, the share of brothers and sisters (whether full, consanguine or uterine) will become nil in the presence of such descendants.
We then come to the Rule of Awl and Radd. There may be, and indeed there are, cases where the arithmetical sum of the fractional shares to which each Sharer is entitled, becomes more than One. This is not an absurdity. Muslim Law clearly provides for such contingencies as well. In such cases, the ratio of the shares held by each sharer is preserved, crystallised, and reworked out so as to ensure that they succeed to the available estate in that ratio.
Sachin Bhatia
(Expert) 16 November 2009
Well described by Mr.Vishal
