IA Khan
Asked June 11, 2016

Want sons to release property in my name

  • 1 Answer
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To Legal Expert We are resident of Bangalore from Muslim community. My husband has expired 3 years before leaving myself(wife) and 2 sons age about 26yrs & 30yrs. During his lifetime, he purchased 1 property in BBMP limits. This is self-acquired property not ancestral. The Sale Deed was registered in his name. After his death, as a legal heirs we got the Khatha transferred from bbmp to all our 3 names (wife & 2 sons) and paying the taxes uptodate. My both sons are unmarried and soon shall get married. We are seeing around in many cases nowadays that when these marriages are unsuccessful, the girl harass the boy & his parent and mainly ask for the property share. Since, I am a widow, if the husband is not alive all these situations shall pressure me. This property is bought by hard earn money by my husband. Also after marriages I fear that the sons may get influence with some other and start disputes between themselves and main thing will be the property. Now we all have equal share in the property since the khata has 3 names. 1) I wanted to know can my 2 sons transfer/release/give their share in favour of me. What is the procedure for it as per legal procedure. Once their give their share/rights to me, will I be the absolute owner of the property. 2) Once they transfer/release/give their share in my favour, Whether their future wife or children can claim any rights over property till I am alive. Or if their marriage are unsuccessful, whether these girls(wives) can claim rights/share/maintenance through this property. What is the procedure to safe guard it. 3) Since, I have only 2 sons and my age is 62 yrs. Suppose they transfer they rights in my favour. After my death, how can I give them equal shares 50:50 for both sons. Can I make any will or any document stating after my death both my sons will get equal share in this property. What is the correct procedure. 4) Will this document/procedure be valid. (Suppose they have already transferred/released/given their share in my favour and I am absolute owner now), but after my death will the both sons be eligible to get the share back after my death. What type of document should I register. What is the correct procedure. 5) With the procedure/document, will both sons get the rights of property or khatha transferred in their names as equal share/owner, after my death. I dont want them to face any problem with bbmp or competent authority to get their share in their names. 6) Also will any of other relatives or third party can claim the rights over property. I request the Legal Expert to provide me with best solution. With regards. Thank You.

Answer 1

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Srija Choudhury

1. Both your sons can transfer the property by the way of gift (Hiba). A person who has attained majority and who is of sound mind can make a gift. The law mandates that a gift should not be made under compulsion.

In Muslim Law, there are four kinds of Hiba, namely :-

1)    Sadaquah – Gift made with religious motive to acquire merit in the eyes of God.

2)    Hiba-bil-iwaz – A gift for consideration. It resembles to sale, and all the incidents of sale is attached to it.

3)    Hiba –ba-shart-ul-iwaz – Gift made with a stipulation (shart) for return.

4)    Areeat – It is a grant of license which is revocable at the donor’s option to take and enjoy usufruct[1] of the property.

 

In the present case, Hiba-bil-iwaz will be the right way to go. For instance, in one judgement, a Muslim died leaving two brothers and a daughter, each brother relinquished his share in favour of the daughter in consideration of the other brother doing the same. It was held that the release/ relinquishment of property made by one brother became the consideration for release by the other[2]. By this, the daughter got absolute ownership of the property. So in our present case it will imply that release of property by one of your son will become consideration for the other one and vice versa.  To constitute a valid Hiba-bil-iwaz there has to be a bona fide payment of consideration by the donee and bona fide intention of the donor to transfer the property to the donee.

 

2.Once the property is transferred to you under Muslim personal laws, you become the sole owner of the property and your sons cannot use your property to pay for maintenance.

 

3.Mohemmadan Law does not make any distinction between ancestral property and self acquired property. Hence, all the property that remains after the payment of charges (funeral expenses, debts, legacies, etc) is inheritable property. Muslim law doesn’t recognize primogeniture (System wherein the first born inherits the property, so the property will be equally divided between the heirs). It is to be noted that, a Muslim can dispose only 1/3rd of his/her property which is left after payment of charges, the balance 2/3rd of the property goes to the heirs. In case you want to make a will, a bequest in favour of an heir will be held invalid unless other heirs consent to it after your death. Once consent is given it cannot be rescinded. The consent need not be express; it can be implied by the conduct of such heir/s.

 

4.The will can be both oral and written, only requisite is that the intentions can be clearly interpreted. It will be beneficial for authenticity that the will is written down and signed by the testator.

 

5.The position of a the executor of a Muslim will is governed by the Indian Succession Act, 1925. The property of the testator vests on the executor and can be sold or conveyed by him, without a probate or taking consent from all the heirs of the testator (Section 307 of the Indian Succession Act, 1925). An oral will may, after proof, be admitted to the probate court. In case of instestacy, it is not necessary for the heirs to obtain letters of administration to establish their right in the property (Section 212 and 213 of Indian Succession Act, 1925)

 

6. Any other relative or third party will only devolve in interest in the property in case there are no 1st class heirs of the deceased.

 

 

[1] Usufruct means to use the advantage of the gifted property.

[2] Ashidbai v/s Abdullah (1907) ILR 32 Com 271

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