Will of a mohanmmaddan
anupam sharma
(Querist) 06 May 2014
This query is : Resolved
A Mohamadan man had married a hindu woman 20 years back. It was remarriage for both the parties, their respective spouses being dead at the time of remarriage. At the time of remarriage the hindu woman had two children while the mohamaddan man was issueless. A daughter was born out of the wedlock
A house was allotted to both of them on license hold basis in lieu of their jhuggi. Now, the wife has died and the man wishes to bequeath the house to the daughter to the exclusion of the two children of wife from her first marriage.
Now the question arises is it possible for the mohammaddan to make a will in respect of the house only in favour of his daughter excluding the two children of wife from her first marriage considering the fact that the allotment of house in question was in name of both husband and wife and the wife has died without transferring her rights to anyone and without a will?
Another question is that the man being a muslim, what provisions would bind him in respect of making a will?
Another question is that would the man be able to dispose of property by way of will or assignment of rights or any other manner as the property in question is held on license basis?
please advise.
Lawyer SALEEMA KABEER
(Expert) 06 May 2014
From the query itself it is clear that the mohamaden man has no absolute right over the property. On the other hand he has been given licence to enjoy the property along with his second wife. No doubt, such being the situation, if the licence given infavour of him is cancelled by the person who gave the licence or by his successor, even the enjoyment right also goes from the Mohamaden man. Therefore, if any conveyance is made by the said Mohamaden man inrespect the property, wherein he has no obsolute right, such conveyance is not legally valid.
ROHIT SHARMA
(Expert) 06 May 2014
1. The query is resolved by the reply of Lrnd Adv. Saleema Kabeer.
Dr J C Vashista
(Expert) 07 May 2014
Will can be made by anyone irrespective of faith.
Anirudh
(Expert) 07 May 2014
I think when the querist says that "A house was allotted to both of them on license hold basis in lieu of their jhuggi", probably he means "lease hold basis" and not "licence basis".
Therefore when the property is on lease-hold basis in favour of two persons then one person alone cannot dispose of the property.
In that case the following will be the treatment:
1. Upon the death of the wife the 50% share in the property over which she has leasehold right, will go in the following manner:
1/4th to husband
3/10 each to the sons
3/20 to the daughter
Now the husband has 62.5% share. 1/3rd of this he can give by will. The remaining 2/3rd of his share will go to the daughter as she is the child of him. (The sons not being his off-springs will not be entitled to anything.)
Rajendra K Goyal
(Expert) 07 May 2014
Whether the marriage happened under special marriage act or by change of religion by any of them ?
T. Kalaiselvan, Advocate
(Expert) 08 May 2014
The query is vague and devoid of proper details including the status of the deceased wife after her marriage that whether she was a Muslim woman (converted) or remained a Hindu woman, whether the marriage was under the SMA, etc. On the face value of the query, to my opinion, Advocate Saleema Kabeer's opinion seems to be appropriate.
