Property distribution in Muslim
08-Apr-2023 (In Property Law)
I belong to a muslim family. I have four sons (three married and one unmarried) and three daughters ( one unmarried and two of them married). Recently I gave my whole property which i had purchased long ago to my youngest son who is unmarried and registered it in registration office. Unfortunately my son had expired without leaving any details of property documements. In short property documents are lost. Now as a 72 year old mother i want to distribute my property equally to my sons and daughters. Can i write a will in this situation ? If not what is the procedure that i should adopt.
File a police Complaint immediately:
The first thing you need to do is to file FIR (First Information Report) in the nearest police station where you have lost your property documents.
Kindly note that only owner of the property has to file FIR, stating that the property papers have been mis-placed or lost or stolen. Do give your Mobile number when registering the FIR so that you can track its status later online.
You are advised to save a copy of the FIR for future use. The prospective buyer(s) of your property or bankers may ask for it in the future.
Kindly note that the Supreme Court has recently ordered all Sates & Union Territories’ police departments to upload First Information Reports (FIRs) on police or government websites, within 24 hours of their registration in police stations. So, once you file FIR in any police station, you can view the FIR details and its Status online.
Apply for a Certified Copy of Sale Deed :
You have to visit the Sub-Registrar office (SRO) where the property is registered and make an application to get a certified copy of Sale Deed.
The Registration office has the scanned copy of your Sale Deed with them. But, they will generally not give a certified copy immediately.
They will ask you to publish an advertisement in National and regional (local) newspaper about the loss of property documents (Sale deed).
You have to publish a ‘Lost & Found’ advertisement in both national and local newspaper, clearly mentioning the details of the lost Document and your contact details.
It is a statutory requirement to publish an Ad. In certain cases, you may have to produce an affidavit or FIR to the newspaper agency before placing your Lost & Found advertisement.
Remember to keep a copy of the complaint as well as the press clippings with you as proof of loss.
After publishing the Ad, you may have to wait for 2 to 4 weeks to see if anyone finds your property documents and returns them within the stipulated time that you have mentioned in the AD.
Prepare an Affidavit and get it Notarized: Even after waiting for say 10 to 15 days, if you do not find the lost documents, you can get an Affidavit prepared on Stamp paper. You have to clearly state the details of the lost sale deed & other documents, and sign the under-taking. You can attach the police FIR document and the copies of newspaper Ads to this Affidavit. The undertaking needs to be attested and registered with a Public Notary.
Get the Duplicate Sale Deed from SRO: You have to pay the prescribed fee meant for this purpose at SRO. Enclose the police FIR document, copies of Ads & Affidavit along with the application for copy of Sale deed. The staff at SRO will verify these documents and issue you a legally certified copy of Sale Deed. Thereafter, certified copies of the Title deed are used as substitute for the original.
After obtaining the same you can file a suit for partition in the jurisdictional civil court.
As per to Sunni Sect the son always gets twice that of the daughter thus the ratio is 2:1. An Indian Muslim inheritance is considered as an integral part of Shariah Law Act 1937. Under the customary Muslim law, a person cannot bequeath more than one-third of his property by will. But if he has married under Special Marriage Act, then he can will away entire property, and succession is governed by Indian Succession Act, and not the Muslim personal law i.e. Shariah Act 1937. As long as the property is his own earned and not an ancestral one, and that he has already given 1/3rd to his daughters’ i.e. to your sisters and 2/3rd he wants to keep for his son i.e. for you . He has full right to do that by a Will which better to be registered and original to be saely-kept with the your local area sub-registrar’s office and you can have a copy of the same. Please also note, he can amend/change/cancel his Will at any time during his life time, even without consulting you. However, any legitimate payable debts by him or his old-age medical expenses and your mother’s old-age medical expenses etc he should clarify in the “will” that how and who will take care of the same, mostly it should be you as you are going to be the beneficiary in the will if he intends to do it. As while making the Will he has to declare all these issues. The Will must not be witnessed by you or any of your sisters/their husbands who are the direct beneficiary of his property but by any third party. Your concerned experienced lawyer can guide you how to make a valid will, who to witness it and how to formalize it. There is no full proof mechanism in law, you can always expect protests by near and dear ones while probating the will and same stands for the Gift deeds too.
The first thing you need to do is to file FIR (First Information Report) in the nearest police station where you have lost your property documents.
Kindly note that only owner of the property has to file FIR, stating that the property papers have been mis-placed or lost or stolen. Do give your Mobile number when registering the FIR so that you can track its status later online.
You are advised to save a copy of the FIR for future use. The prospective buyer(s) of your property or bankers may ask for it in the future.
Kindly note that the Supreme Court has recently ordered all Sates & Union Territories’ police departments to upload First Information Reports (FIRs) on police or government websites, within 24 hours of their registration in police stations. So, once you file FIR in any police station, you can view the FIR details and its Status online.
Apply for a Certified Copy of Sale Deed :
You have to visit the Sub-Registrar office (SRO) where the property is registered and make an application to get a certified copy of Sale Deed.
The Registration office has the scanned copy of your Sale Deed with them. But, they will generally not give a certified copy immediately.
They will ask you to publish an advertisement in National and regional (local) newspaper about the loss of property documents (Sale deed).
You have to publish a ‘Lost & Found’ advertisement in both national and local newspaper, clearly mentioning the details of the lost Document and your contact details.
It is a statutory requirement to publish an Ad. In certain cases, you may have to produce an affidavit or FIR to the newspaper agency before placing your Lost & Found advertisement.
Remember to keep a copy of the complaint as well as the press clippings with you as proof of loss.
After publishing the Ad, you may have to wait for 2 to 4 weeks to see if anyone finds your property documents and returns them within the stipulated time that you have mentioned in the AD.
Prepare an Affidavit and get it Notarized: Even after waiting for say 10 to 15 days, if you do not find the lost documents, you can get an Affidavit prepared on Stamp paper. You have to clearly state the details of the lost sale deed & other documents, and sign the under-taking. You can attach the police FIR document and the copies of newspaper Ads to this Affidavit. The undertaking needs to be attested and registered with a Public Notary.
Get the Duplicate Sale Deed from SRO: You have to pay the prescribed fee meant for this purpose at SRO. Enclose the police FIR document, copies of Ads & Affidavit along with the application for copy of Sale deed. The staff at SRO will verify these documents and issue you a legally certified copy of Sale Deed. Thereafter, certified copies of the Title deed are used as substitute for the original.
After obtaining the same you can file a suit for partition in the jurisdictional civil court.
As per to Sunni Sect the son always gets twice that of the daughter thus the ratio is 2:1. An Indian Muslim inheritance is considered as an integral part of Shariah Law Act 1937. Under the customary Muslim law, a person cannot bequeath more than one-third of his property by will. But if he has married under Special Marriage Act, then he can will away entire property, and succession is governed by Indian Succession Act, and not the Muslim personal law i.e. Shariah Act 1937. As long as the property is his own earned and not an ancestral one, and that he has already given 1/3rd to his daughters’ i.e. to your sisters and 2/3rd he wants to keep for his son i.e. for you . He has full right to do that by a Will which better to be registered and original to be saely-kept with the your local area sub-registrar’s office and you can have a copy of the same. Please also note, he can amend/change/cancel his Will at any time during his life time, even without consulting you. However, any legitimate payable debts by him or his old-age medical expenses and your mother’s old-age medical expenses etc he should clarify in the “will” that how and who will take care of the same, mostly it should be you as you are going to be the beneficiary in the will if he intends to do it. As while making the Will he has to declare all these issues. The Will must not be witnessed by you or any of your sisters/their husbands who are the direct beneficiary of his property but by any third party. Your concerned experienced lawyer can guide you how to make a valid will, who to witness it and how to formalize it. There is no full proof mechanism in law, you can always expect protests by near and dear ones while probating the will and same stands for the Gift deeds too.
Disclaimer: The above query and its response is NOT a legal opinion in any way whatsoever as this is based on the information shared by the person posting the query at lawrato.com and has been responded by one of the Divorce Lawyers at lawrato.com to address the specific facts and details.
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