Muslim personal law
mohtashim
(Querist) 26 April 2012
This query is : Resolved
Please explain the below query as per Muslim Personal Law in detail.
A sunni Mohammedan dies leaving behind one Daughter and Pre-deceased Son's son and daughter also Pre-deceased daughter's daughter. Please explain the order of succession. Also throw some light on the concept of Residuary and the law of exclusion and the Law of Return.
Thanks.
SAINATH DEVALLA
(Expert) 26 April 2012
Dear Querist,
Is the wife of the deceased Mohammedan alive?If she is alive she inherits the property automatically as per the Shariat Law among Sunni's.If she is no more,then all the legal heirs(irrespective of gender) will inherit equally as per the Shariat.
Residuary Estate: Residuary estate, in the law of wills, is any portion of the testator's estate that is not specifically devised to someone in the will, or any property that is part of such a specific devise that fails. [1][2] It is also known as a residual estate or simply residue. The will may identify the taker of the residuary estate through a residuary clause or residuary bequest. The person identified in such a clause is called the residuary taker, residuary beneficiary, or residuary legatee. If no such clause is present, however, the residuary estate will pass to the testator's heirs by intestacy.
At common law, if the residuary estate was divided between two or more beneficiaries, and one of those beneficiaries was unable to take, the share that would have gone to that beneficiary would instead pass by intestacy, under the doctrine that there was no residuary of a residuary. The modern rule, however, is that the failure of a residuary gift to one beneficiary causes that beneficiary's share to be divided among the remaining residuary takers.
EXCLUSION CLAUSE is a term used in a contract that seeks to restrict the rights of the parties to the contract.
LAW OF RETURN is a term in economics and has nothing to do with Law.
Adv.R.P.Chugh
(Expert) 26 April 2012
Daughter would take 1/2.
Son's Son and Daughter take as residuaries - with son's son taking double the share of son's daughter i.e he takes 2/3 of 1/2 - that comes out to be 2/6th.
In the ultimate analysis
Daughter - 3/6
Son's Son - 2/6
Son's Daughter - 1/6.
Residuaries inherit if some residue of property is left after shares of quranic heirs are satisfied.
Law of Exclusion talks on these lines :-
1. In presence of nearer latter excluded.
2. If one through whom you trace descent is present you don't inherit in his presence (which is a corroloary of rule 1.)
and some others.
Hope this helps ;-)
Khaleel Ahmed Mohammed
(Expert) 26 April 2012
I totally disagree with the above advise given by the experts.As a matter of fact , the above experts without having proper knowledge of Mohammadan law,have advised wrongly, such advises must be ignored.
In the the query , it is clearly mentioned that, Mohammadan leaves one daughter and predeceased son's son or grand son and grand daughter behind him,and there is no other Quranic heirs,such as deceased mohammadan's mother or brother or sister or their successor.
As per shariath law as soon as the deceased son demised before him , his all successors lost the right of inheritance in the property of the grand father as per Islamic law.Now here the only daughter is the absolute successor of the property left by the deceased Mohammadan without any dispute.
Raj Kumar Makkad
(Expert) 26 April 2012
I completely agree with the opinion of Khaleel Ahmad. Such issues have various times been discussed in this section that sons or daughters of pre-deceased son or daughter of a Sunni Mohammadan lose their entire rights in the properties of their grand-father so in the given case the only daughter is the absolute owner of the property.
Law of exclusion has properly been defined by Bharat.
Shonee Kapoor
(Expert) 27 April 2012
I endorse Khaleel's view on Shariat.
However courts on equity basis has granted the share to the deceased son's offsprings share in the property.
You can search relevant judgments on www.indiankanoon.org
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Anirudh
(Expert) 27 April 2012
Dear Mr. Sainath Devalla,
You have not only bowled outside the off stump, in fact bowled outside the stadium to say the least!
SAINATH DEVALLA
(Expert) 27 April 2012
I am sorry Mr,Khaleel,
I have gone through the Muslim Personal Law and then put my opinion.But I think a thorough study would have been better.
Anirudh,
Bowling outside the off stump is a no ball,can you define the technical word for bowling outside the stadium,so that I can teach the Umpires.
prabhakar singh
(Expert) 27 April 2012
It says in Tuhfat al-Muhtaaj fi Sharh al-Minhaaj (6/402): "If the two types are both present,’ meaning his own children and his son’s children, "whether his own child is male" only, or there is also a "female", "the son’s children are prevented from inheriting" according to scholarly consensus."
Heirs are pre fixed in Quran.A pre deceased son who is not alive on the death of his father is non existing one hence no vesting can take place in him,when his other brothers and sisters are alive.
prabhakar singh
(Expert) 27 April 2012
But in a case where the son’s children do not inherit, it is recommended to make a will in their favour, so long as it does not exceed one-third of the estate, especially if they are poor and in need.
Anirudh
(Expert) 27 April 2012
Dear Mr. Sainath Devalla,
I thought that you have some difficulties in Muslim Inheritance law.
Now from your above post, it becomes clear that even in Cricketing rules also you have some difficulties.
For your information "Bowling outside the off stump is 'NOT A NO BALL' as indicated by you. It is an accepted delivery though not aimed at the stumps, but near about the stumps. [some times the answers by the experts are not quite apt to the query but near about touching around the question.]
You ask me whether I can define the technical word for bowling outside the stadium,so that you can teach the Umpires.
First you have not even understood the pun intended in my saying that you have bowled outside the stadium - to say that you are not at all anywhere near the query - leave alone answering the query.
Therefore, without understanding this, if only you want to know the technical term and then want to teach the umpires, now itself I have started feeling pity for those Umpires!
