Mra Guest
Asked July 30, 2016

muslim inheritance

  • 1 Answer

Dear sir/madam, we are 2 brothers (myself & my elder brother) & 5 sisters (all are married ,living in thier husband's house) belong to muslim family.we have a house inherited from my father. now we two brothers are living in this inherited house. Now my elder brother want division of house & he want me to pay the money as per current market rate for the portion of the house he may get in the property & he will quit the house. But my brother & his wife & her relatives are not law abiding people,they are little criminal minded so i am thinking what is the better option for me to give the portion of the house itself to my brother or money as per its current market value? if i give money ,is there any loop hole in laws that he may again come & ask me his share in the inherited house? what is safer option for me? plz suggest. Regards, Dr.MRA.

Answer 1

Default avatar
Saumya Kumar
In the present matter the best option available for you will be to partition the property and divide the house between the heirs of your father. The portions which will be given to your brother can be purchased by you by paying the market rate. In this process you will have to execute two documents – a partition deed and a sale deed. Partition Deed For a partition deed it is imperative to know the beneficiaries of the property after the death of the ancestor. Under the Shariat Law, it is generally recognized that the sons will take twice of what is given to the daughter. (Mohammed Gani vs Parthamuthu Sowra, A.S.No.1315 of 1989, Madurai Bench of the madras High Court) Therefore, in the present situation if your father died without executing a will, his property will be shared between his sons and daughters in the ration 2:1. Your sisters will each get 1/9th of the property and you and your brother are entitled to 2/9th of the property each. Therefore you and your brother cannot take ½ of the the property each without considering the interest of your sisters even if they are married. (Mohd. Jamal And Other vs Mohd. Sharfuddin, 1998 (5) ALT 655, para 20) As long as there is no partition, you and your siblings are tenants-in-common and you can claim your share by partition (Mt. Fardosjahan Begum w/o Syed Alay Rasul and others v. Kazi Shafiddin s/o Kazi Shujatali Musalman and others reported in AIR (29) 1942 Nagpur 75).Therefore, if you intend to partition the property, all the heirs including the five sisters will have a share in the partition.In the case of Kanakarathanammal v. V.S. Loganatha Mudaliar, AIR 1965 SC 271 the daughter filed for partition without the involving her brothers which was not allowed by the Court (concurring opinion in Alim Amadby LR v. Sindhi Ebrahim Kasam MANU/GJ/0059/1983). It is very important to get this clearance from your sisters as they are also owners of the said property and your brother cannot sell the property to anyone including you without the permission of the sisters. The other possible option is that all your sisters submit a No-objection certificate by which they declare that they relinquish any present or future claim in the property. A sale deed between you and your brother, can be held invalid subsequently if anyone of your sister object and ask for a claim for their father's property i.e. the house. The Partition Deed with the consent of all the beneficiaries must be registered for the Court to consider it valid. A registered deed will be helpful in determining that the partition was legal and in case of any dispute the validity of the partition deed will be much easier to establish. (Chintiappareddigari Pedda Muthyatareddy v. Chinnappareddygari Venkatareddy, AIR 1969 AP 242). The registered partition deed will mean that your brother now owns a portion of the house which he can now alienate and can transfer to any person including you. (Intaz Ali Choudhury v. Asia Mia Coudhury, (2005) 2 GLR 429) Different sects and communities in Islam have different provisions for succession. The above mentioned rules and cases are the most commonly applied rules. It is therefore advised that you must ascertain the religious sect you belong to and try to identify the rule of succession applicable for you , in case your community is not covered by these Shariat laws. For the Sale Deed After the registration of the Partition Deed, your brother will have to execute a Sale Deed in your favor. The Sale Deed transfers the property in your name and the title will be vested in you after the payment of the due amount. Make sure that the the Sale Deed is properly registered in your name and is signed by your brother. It is imperative that you must get the sale deed registered with the proper stamp duty. The registered sale deed ensures that the document will be recognized if there is any legal dispute on the matter in the Court. The registered sale deed will make it easier to establish that you own the property in case there is any dispute on the matter. For more details on sale deed registration <> Mutation In addition to the sale deed, the process of mutation can also help you to cement your claim over your brother's share. Mutation also called 'dakhil kharij' is basically the process of changing the name of the owner in the Revenue Records of the Government. After the sale of a property, the buyers apply beofre the Tehsildar of the region to change the name in the records. With the application , the buyer has to submit a copy of the sale deed, affidavits among other things depending upon the requirement of different State Governments. It is advisable that you must apply for mutation of the portion you acquire from your brother so that the Revenue Records can be employed to prove your ownership over the property. In your case it is also very important to examine the current title of the property int he revenue Records. If the property is still registeredin your father's name then you will have to apply for mutation after inheritance where your father's death certificate will have to be submitted.
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