Family property under muslim law
ASIT
(Querist) 28 April 2013
This query is : Resolved
One of my friend (Muslim, 18 yrs old) want to give 50% his share of inheritance from deceased father to his unmarried sister for her marriage purpose without inform his other sister who already married. Please note that the inherited property is not separated to individuals name.
Please provide steps and procedure in this regard.
M.Sheik Mohammed Ali
(Expert) 28 April 2013
yes, he can give his shares, once get shares from by way of inheritance, at once become owner of the assets, so dont worry he will do as his wish. no one interfere
ASIT
(Querist) 28 April 2013
Dear M.Sheik Mohammed Ali, Thank you for your prompt response.
The inherited property is not separated to individuals name. Still it is under group of three (one brother and two sisters)
M.Sheik Mohammed Ali
(Expert) 28 April 2013
all the legal heir must partition the property than give by way of gift.
Advocate Ravinder
(Expert) 29 April 2013
Even though property is not separated, you can give your property to your unmarried sister by way of gift. In muslim law, even though gift deed is not registered it is valid. You married sister consent is not necessary.
As your married sister is not giving consent, there is no possibility of mutual partition. Hence, you have to file a civil suit. It will take time. So, right now you gift the property to your unmarried sister. Later your unmarried sister can file partition suit on behalf of you.
Devajyoti Barman
(Expert) 29 April 2013
You can gift your share in favour of your sister. Even if it is not undivided, that would be of no problem.
If gift is oral , no question of registration. However if the same is put into writing then it is required to be registered.
Anirudh
(Expert) 29 April 2013
I am sorry. There is some confusion here.
1. Niyas Aslam says that he wants to give 50% of his share to his unmarried sister for her marriage purposes. (What does that mean. Does it mean that the sister can sell the same and utilise the money for her marriage purpose? If so, will not his other sister come to know about it? This is not quite clear).
2. Further, as far as gift by a Muslim is concerned, it has to be declared, the donee has to accept, and the donor has to give possession and immediately vacate.
3. Since the property in question is not divided yet, which portion the donor will vacate and give immediate possession to the donee? Therefore, how the gift will become valid?
Advocate Ravinder
(Expert) 30 April 2013
For querry No.1—The 50% property will be undivided property. If she wants to use the property or she wants to sell the same to some third party, she has to file partition suit in civil court. If there is consent from your married sisters, then there is no necessity of filing suit. By entering into registered partition deed in the office of sub registrar is enough.
For querry No.2—If the gift is oral the above three elements has to be fulfilled. If the gift is written registration will be necessary.
For querry No.3—In the partition suit, court will ask the parties to the suit to submit to the court a sketch plan showing shares of the parties. If there is again dispute in respect of sketch plan, the court sell the property in auction and distributes the amounts as per their shares.
I hope the doubts are clarified.
ASIT
(Querist) 30 April 2013
Dear Mr. Ravinder,
As per your openion "In muslim law, even though gift deed is not registered it is valid."
May I write the gift deed in a white paper with my signature and two witness is enough?
If not please let me know the easiest way to do a valid gift deed.
Thank you for your help.
Khaleel Ahmed Mohammed
(Expert) 01 May 2013
I do not agree with the experts. As a matter of fact the total property to be partitioned between two sisters and one brother. Brother get half of the total property, and both sisters get oneourth each of the total property. The brother can not give his share of property either half or full infavor of his sister, he can give only onethird of his succeeded property by way of gift.For the purpose of gift there is no mandatory about the execution of the registered deed. Oral gift is valid, but a memmo can be executed.
If the brother really give his total share to his sister, he should opt other way of sale .
prabhakar singh
(Expert) 01 May 2013
I agree with Mr. Khaleel Ahmed ONLY when brother is on death bed intending to make such a GIFT,which is treated more a Will than a Hiba and is valid for only 1/3 unless consented by heirs of the donor.
Otherwise a Muslim can Hiba his entire property during his lifetime as he can
sale.
Advocate Ravinder
(Expert) 02 May 2013
To my knowledge, this 1/3rd concept is only for will not for gift.Please check up and if possible give me citations or relavant rule of shariat Act.
Raj Kumar Makkad
(Expert) 02 May 2013
What are the Essentials of a Valid Gift under Muslim Law in India?
The following are the important essentials of a valid gift under Muhammadan Law:
1. The Donor must be Competent:
The donor must have a capacity to make a gift, i.e., he must be a major and of a sound mind. He may dispose of the whole of his property by gift in favour of any person including a stranger, even to the entire exclusion of his heirs. There are no limits on the power of the donor to dispose of his property, as there are on the testamentary .capacity of a testator.
The donor’s intention must not be dishonest, as where a gift is made with intent to defraud creditors.
A gift can be made of an actionable claim, as also of incorpareal property, such as an equity of redemption.
2. Declaration and Acceptance:
There must be a declaration of the gift by the donor and an acceptance of the gift, express or implied, by or on behalf of the donee.
3. Delivery of Possession:
It is essential to the validity of a gift that it should be accompanied by delivery of possession, depending, of course, on the nature of the property gifted. The taking of possession of the subject-matter of the gift by the donee, either actually or constructively, is necessary to complete a gift.
Registration of the deed of a gift does not cure the want of delivery of possession. Neither writing nor registration is necessary to validate a gift either of movable or immovable property.
Thus, A by a registered deed, makes a gift of his house to B, who sells it to C. Can С claim possession from A, who all along continued in actual possession of the house? No. Although the gift to В is by a registered deed, possession is not delivered to B. The gift is incomplete, and therefore, void. The sale by В to C, is, therefore, ineffective and, С cannot claim possession from A. (Mogulsha v. Mohammad Saheb, (1887) I.L.R. 11 Bom. 517)
Advocate Ravinder
(Expert) 03 May 2013
I agree with Raj Kumar Makkad sir, but the difference of opinion is with regard to 1/3 concept. Mr. Khaleel Ahmed sir says even for gift also this 1/3 concept applies. Whereas, my contention is that 1/3 applies to only will/hiba but not gift. Please clarify on this point.
