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Parvina Seth Salim

Posted 1 week ago

A Married Childless Muslim person had a family of one wife and seven sisters. He was thus the only male member in the family. Six out of seven sisters died before the above said Muslim person the Testator, who too expired some time ago. In his Will, the Testator bequeathed his whole property and assets, in the shares of 1/8th each, to his living wife, living sister and survivors of the six deceased sisters. QUESTION Is the above Will valid and if not then what should be the actual distribution of the estate according to Muslim Sharia Law. Are the survivors of deceased sisters eligible to the share in estate? If not then what should happen to their 6/8 part of the share.

A. Dear Client, The laws on Muslim Wills are not the same as those made under the Indian Succession Act, 1925. Muslim Will are governed by the rules laid by the the Koran. As a general rule in the Muslim law in India (Shariat), any person, who is a major (above 15 years) and is of sound mind, can make a Will but can't dispose of more than one-third of his property without the consent of his heirs. This includes the assets left after payment of funeral expenses and debts. The remaining two-third property is the legal right of his heirs at the time of his death. With respect to Shia Muslims, bequeathing one-third estate to an heir or to a non-heir is permissible. However, under the Sunni Muslim personal law, the one-third inheritance may be made in favour of a non-heir without seeking the consent of legal heirs. If it is made to an heir, it is invalid unless the consent of other heirs is obtained after the death of the testator. However, the such a restriction does not apply to a Muslim whose marriage has been solemnised under the provisions of the Special Marriage Act, 1954 (instead of Muslim personal laws). If the marriage is solemnised under this Act, the rules of Hindu or Muslim personal law cease to apply to him with respect to the matters of succession of his property. In such a scenario, a Muslim may, by his will, dispose of his entire property at his free will. No restriction to gift a property But a Muslim is at his liberty to transfer his entire property in his lifetime through a gift to any person, unless it is a marz ul maut (death bed) gift. Under the Muslim law, marz ul maut is regarded a malady which induces an apprehension of death in the person suffering from it and which eventually results in his death. In such a scenario, the person can't bequeath more than one-third of his estate without the consent of the heirs. Property to an unborn child Bequeathing property to an unborn child is not allowed. However, if a mother is pregnant, and a child is born within six months of the death of the person making the Will, the child has all the rights to inherit the property. Form of Will The Muslim law does not mandate a written form of Will. It may be made orally as well as in writing. There is no particular manner in which the Will has to be written. At the same time, unlike a Will made by a Hindu, it's registration and attestation is not mandatory. In case the Will has been made orally, it is the duty of the person to establish and prove the existence of oral Will with utmost precision beyond doubt. If the person making the Will wants to revoke it, it may be done either verbally or in writing. Shanti Ranjan Behera Advocate
Shanti Ranjan Behera Exp: 22 Year(s) Bhubaneswar
Kishan Dutt Kalaskar Retired Judge Experience: 33 Year(s) Bangalore
Sir my wife filed divorce case and i filed rcr. i sent notice of rcr nit came back as intimation served.if she dont attend court then is dat case judgement ll b in my favour or wt next step the court ll take on my behalf on her.n dey said call on 02.02.2019 wt it means? is she has to come on dat day r dey serve one more for dat reason to her to attend on dat date. if so n if she dnt attend on dat day also wt ll hpn. plz reply me sir

A. Judgement is the last stage. If the case is filed dont expect judgement so soon. There are procedures to be followed and hence it takes time. In your case if your wife remains absent most probably another date will be given. Find a local lawyer for a better understanding
Mohammed Faiz Shaikh Exp: 1 Year(s) Mumbai suburban
Kishan Dutt Kalaskar Retired Judge Experience: 33 Year(s) Bangalore
Shanti Ranjan Behera Experience: 22 Year(s) Bhubaneswar

Anonymous

Posted 1 week ago

I got married 2 years back n went to USA with husband... It was an arranged marriage n we just met once... Was just connected over phone... I felt he was the right guy for me as we had a lot of talks when we met... But after I went to USA n started living with him I realized that I'm not compatible with him.. There arised differences in opinion n we used to have fights over almost every thing... I hated the way he used to speak n hence a bad image of him was painted in my mind... It became impossible for me to indulge in sex with him as a result of these differences n clashes... I still tried to adjust but faced difficulties.... We hardly used to talk because of these differences n clashes. It became boring. The differences became prominent day by day.... After one year I came back to India to meet my parents... My husband eventually had problems with me being too involved with my family n started poking me for everything... He started criticizing me... I came for two months as I was missing my parents as I hardly had time with them after my marriage... Due to some visa issues I had to go earlier but I refused as I was unable to adjust with the situation n I was diagnosed with depression because of all d clashes.... At that time my uncle who was irritated with me refusing to go back because he was scared that her daughter may face problems in getting married, took my phone forcibly n abused me verbally. He used slangs. He verbally abused my friends who called me that day accusing them of breaking my marriage... Seeing all these I agreed to go back unwillingly.. My friends cut off all ties with me after all these as they have their family.... After two years when I came back finally... I had a fight with my in laws n husband regarding staying at my parents home... I felt insulted.... Hence I came back home.. My family members got irritated n stopped talking with me... I decided to get a job as I didn't wanted to be a burden for my parents... Iwas on h4 visa in USA n hence couldn't do a job)... I went for an interview n immediately got a job... When I came back home I was asked to go back to my in laws as they have a marriage n they won't be able to give answers to their family... I refused but my uncle again started verbally abusing me... Using the cheapest of slangs.. He accused me of having affair with some other guy which is very insulting n untrue... He again took my phone n forced me to give password but I refused as I was scared he may do the same thing again especially with the hr who called me that day n accuse her which may affect my job life.... He restricted me from going out n didnt let me do the job... My parents couldn't speak a word in front of him.... They are not letting me go out or do a job... That person(uncle) always says bad words about me, my mom said.... I have to go to my in-laws forcibly... What can I do n what steps can I take against my uncle as he is too much now....

A. If you are not comfortable with, then you file a divorce petition in 13B in faimaly court.
Siyaram Sharma Exp: 15 Year(s) Jaipur
Kishan Dutt Kalaskar Retired Judge Experience: 33 Year(s) Bangalore
Shanti Ranjan Behera Experience: 22 Year(s) Bhubaneswar

Krunal Sankhe

Posted 1 week ago

have property which I procured from builder in 2009. In October 2018, i sold same to another party. After my agreement, party went to bank for loan. But after all documents verification done, bank informed about one Lis Pendense which was submitted in 2014. Due to same, bank is unable to disburse loan. This is only thing pending. Please suggest what I can do in this case as I am stuck.

A. Dear Mr. Krunal, Latin for "a suit pending," a written notice that a lawsuit has been filed which concerns the title to real property or some interest in that real property. The lispendens (or notice of pending action) is filed with the clerk of the court, certified that it has been filed, and then recorded with the County Recorder. The doctrine of lis pendens, embodied in Section 52 of the 1882 Transfer of Property Act, effectively provides that during the pendency of a suit in which any right to immovable property in is question, the property cannot be transferred by any party to the suit so as to affect the rights of other parties Supreme Court rules on doctrine of lis pendens and registration of documents In Har Narain v Mam Chand,(1) the Supreme Court discussed and reviewed the law relating to the doctrine of lis pendens with regard to Section 47(2) of the 1908 Registration Act. The doctrine of lis pendens provides that no fixed property can be transferred while an action relating to it is pending before a court of law.(3) Under Section 47, a registered sale deed of a fixed property, on registration, is deemed to operate from the date of execution. The court clarified that the legal fiction created by virtue of Section 47 does not circumvent the operation of lis pendens. In effect, the court held that if a sale deed was not registered at the time the civil suit commenced and is registered subsequently, the property sale will still be subject to the principle of lis pendens. Facts The first respondent, owner of certain land, mortgaged the property in favour of its predecessor in interest of the appellant, which had been in possession of the land since 1970. The respondent and the appellant had also entered into an agreement to sell the property. Subsequently, the respondent executed a sale deed purporting to transfer the property to a third party on August 2 1971.The sale deed was registered on September 3 1971. In the period between execution of the sale deed and its registration on August 10 1971, the appellant filed suit against the respondent seeking specific performance of the agreement to sell. The suit was resisted by the respondent on the grounds that the sale deed (dated August 2) related back to the date of execution under Section 47, and accordingly the property was classed as sold prior to initiation of the lawsuit. The appellant argued that since registration took place after filing of the suit, the sale was affected by lis pendens. The trial court and the High Court both took the view that the doctrine of lis pendensdid not apply to the facts of this case. The lower courts had proceeded on the presumption that although the documents had been registered after the suit was filed, they related back to the date of execution. Therefore, the sale of the property was deemed to have been effected on the date of the execution of the sale deed itself. Decision The appellant appealed to the Supreme Court, which upheld the appeal. It held that: "in spite of the fact that the registration would relate back to the date of execution, the sale cannot be termed as complete until its registration and it becomes effective only once it stands registered. Thus, the fiction created by Section 47 does not come into play before the actual registration of the document." The Supreme Court observed that a similar issue, though involving a right of pre-emption, was considered by the Constitution Bench in Ram Saran Lall v Mst Domini Kuer,(4) wherein the Supreme Court concluded that: "in spite of the fact that the Act, 1908, could relate back to the date of execution in view of provisions of Section 47 of the Registration Act, 1908, the sale could not be given effect to prior to registration and thus the sale was not complete until the registration of instrument of sale." The court in Ram Saran also clarified that Section 47 of the Registration Act does not specify when a sale is deemed to be complete. It observed that: "a sale which is admittedly not completed until the registration of the instrument of sale is completed, cannot be said to have been completed earlier because by virtue of Section 47 the instrument by which it is effected, after it has been registered, commences to operate from an earlier date."(5) The Supreme Court took the view that the lower courts failed to appreciate that the fiction created by Section 47 of the act itself is a consequence of registration of the document. Accordingly, it was held that the doctrine of lis pendens applied in the present case, as the registration of the sale deed occurred after the suit was filed. Comment The Supreme Court has clarified its position with regard to the operation of Section 47 of the Registration Act. It appears that, in its reasoning, the court has equated the words "shall operate from" to "be effective from". On that reading, the position taken by the Supreme Court is not in tune with the literal meaning of the words used in Section 47. This is one of the many instances in which the courts have chosen to eschew a literal meaning in favour of a purposive one in order to serve the ends of justice. For further information on this topic please contact Jasleen K Oberoi or Bahaar Dhawan at Amarchand & Mangaldas & Suresh A Shroff & Co by telephone (+91 11 4159 0700), fax (+91 11 2692 4900) or email (jasleen.oberoi@amarchand.com or bahaar.dhawan@amarchand.com). Endnotes (1) Civil Appeal 995-996/2003, October 8 2010. (2) Section 47 of the 1908 act: "Time from which registered document operates :A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration." (3) The doctrine of lis pendens, embodied in Section 52 of the 1882 Transfer of Property Act, effectively provides that during the pendency of a suit in which any right to immovable property in is question, the property cannot be transferred by any party to the suit so as to affect the rights of other parties. (4) AIR 1961 SC 1747, by a three-to-two majority. (5) This position has been followed in a plethora of cases: Hiralal Agrawal v Rampadarath SinghAIR 1969 SC 244; SK Mohammad Rafiq v Khalilul Rehmad AIR 1972 SC 2162; Thakur Kishan Singh v Arvind Kumar AIR 1995 SC 73; and Chandrika Singh v Arvind Kumar Singh AIR 2006 SC 2199. Shanti Ranjan Behera, Advocate
Shanti Ranjan Behera Exp: 22 Year(s) Bhubaneswar
Shreyash Mohta Experience: 1 Year(s) Kolkata
Kishan Dutt Kalaskar Retired Judge Experience: 33 Year(s) Bangalore

Krunal Sankhe

Posted 1 week ago

I have property which I procured from builder in 2009. In October 2018, i sold same to another party. After my agreement, party went to bank for loan. But after all documents verification done, bank informed about one Lis Pendense which was submitted in 2014. Due to same, bank is unable to disburse loan. This is only thing pending. Please suggest what I can do in this case as I am stuck.

A. Dear Mr Krunal Sankhe, This question has been answered earlier. If you look for some opinion then get in touch with a good Real Estate Lawyer from your locality who can do the job for you. Shanti Ranjan Behera Advocate
Shanti Ranjan Behera Exp: 22 Year(s) Bhubaneswar
Kishan Dutt Kalaskar Retired Judge Experience: 33 Year(s) Bangalore

Krunal Sankhe

Posted 1 week ago

I have property which I procured from builder in 2009. In October 2018, i sold same to another party. After my agreement, party went to bank for loan. But after all documents verification done, bank informed about one Lis Pendense which was submitted in 2014. Due to same, bank is unable to disburse loan. This is only thing pending. Please suggest what I can do in this case as I am stuck.

A. Dear Mr. Sankhe, You have to wait. Shanti Ranjan Behra Advocate
Shanti Ranjan Behera Exp: 22 Year(s) Bhubaneswar
Kishan Dutt Kalaskar Retired Judge Experience: 33 Year(s) Bangalore

Noratan Lalchand Singhi

Posted 1 week ago

My salary due of three month and bonus total Rs.about 127000/_from Sep.17 please suggest what can I do. Due in pvt Ltd co.

A. Dear Sir, Where lies the problem? When it is expected to be solved or sorted out? Ask your due. If the company takes more than what is due then serve a Legal Notice. This should be the last resort. Shanti Ranjan Behera Advocate
Shanti Ranjan Behera Exp: 22 Year(s) Bhubaneswar
Rameshwar Dadhe Experience: 2 Year(s) Aurangabad
Shreyash Mohta Experience: 1 Year(s) Kolkata
Kishan Dutt Kalaskar Retired Judge Experience: 33 Year(s) Bangalore

Anonymous

Posted 1 week ago

In this case financial loss was caused to an organisation due to professional misconduct of an employee. Case was filed against him for recovery of losses (apart from the dismissal and adjustment of retiral dues done post internal enquiry as permitted under staff rules) over and above the action taken post internal enquiry. There is no trail of money to suggest that the employee got any financial benefit. It is settled law that tort survives only (i) in case of a deceased plaintiff, if the estate has thereby suffered damage; and (ii) in case of a deceased defendant, if there has thereby been benefit or accretion to the estate. In this case does right to sue LR suvives?

A. Dear Client, Please see the ORDER XXII : DEATH, MARRIAGE AND INSOLVENCY OR PARTIES of Code of Civil Procedure 1908 - Schedule I Occasionally during a lawsuit, especially a personal injury lawsuit where a person's health is at issue, one of the parties to the lawsuit can pass away. This unfortunate and unusual situation raises the issue of what happens to a lawsuit when a party dies, as well as whether the lawsuit is automatically terminated. Because lawsuits customarily pass to the deceased person's estate, the lawsuit generally isn't automatically terminated. If the Plaintiff Dies In a civil lawsuit, if the plaintiff dies, the beneficiaries and heirs to the plaintiff's estate inherit the lawsuit. The person named in the deceased person's will as his executor, or the person named by the court as administrator of the estate if there is no will, can continue the lawsuit on behalf of the deceased person. If the case settles, the executor or administrator distributes the proceeds to the beneficiaries and heirs. To continue the lawsuit, most jurisdictions require that, within 90 days of death, a notice of death and a copy of the death certificate be filed with the court requesting that a successor to the lawsuit be appointed. A failure to do so could result in an automatic dismissal of the lawsuit. The executor or administrator appointed to handle the decedent's estate should consult with the beneficiaries and heirs of the estate before settling the lawsuit to ensure that there is no dispute regarding the resolution of the case. If the Defendant Dies Similarly, when a defendant dies during a civil lawsuit, the estate is substituted for the deceased person. Most states allow the executor or administrator of the deceased's estate to handle the lawsuit without any input from the heirs or beneficiaries of the estate. As with the death of a plaintiff, in the case of a deceased defendant, it is generally prudent that the executor or administrator consult with the beneficiaries and heirs before agreeing to a settlement in the event that they have any opposition. If the beneficiaries and heirs do agree, however, states generally provide that they cannot later change their minds and reopen the estate to dispute the settlement. Unlike plaintiffs, defendants do not have to file a notice of death since they are not the ones that stand to lose if the lawsuit is automatically dismissed. Regardless, in the case of both a plaintiff and a defendant, the continuation of a lawsuit can be difficult if the testimony of the deceased person is crucial to the case. Shanti Ranjan Behera, Advocate
Shanti Ranjan Behera Exp: 22 Year(s) Bhubaneswar
Shreyash Mohta Experience: 1 Year(s) Kolkata
Kishan Dutt Kalaskar Retired Judge Experience: 33 Year(s) Bangalore
Sir, Greetings of the day. Our society has executed registered development agreement with developer in 2015. For the reasons best known to developer and society the plan approved lapsed .Most probably the developer is not in position to start the work due to finance problem The developer has given promises 6 times that he is going to start work after completing all the legal formalities. However it has never started. The society has received notice from MCGM IN 2016 to repair it but society is not repair it on the plea we are going to vacate.. Members are also not repairing it as they are given new dates every time. The plastering of ceiling falls in someone flat. The condition of building is deteriorating day by day and both the developer and society are taking advantages of this situation. In October 2018 the developer informed that once the NEW DP PLAN 2034 COMES INTO EFFECT HE WILL GET THE PLAN APPROVED WITHIN 8 DAYS EXECUTE BANK GUARANTEE/ REGISTER INDIVIDUAL AGREEMENT ETC. Now after the policy announced he asked the society to waive certain clauses of registered development agreement viz. BANK GUARANTEE WILL NOT BE PROVIDED BY HIM BUT HE WILL PROVIDE MORTGAGE ON 1ST FLR IN THE BUILDING TO BE CONSTRUCTED AND WILL NOT DEDUCT 14 FEET OF MEMBERS DUE TO 5% DEDUCTION FOR MCGM. AMENITIES. He will change the plan for sale component as per his wishes earlier the registered development agreement provides for society consent for any change in plan by developer once approved by both parties. Thirdly, henceforth if there is change in FSI RULES IT WILL NOT BE SHARED WITH SOCIETY .THE REGISTERED DEVELOPMENT AGREEMENT PROVIDES FOR SHARING ON EQUAL BASIS PROFIT/LOSS DUE TO CHANGE IN POLICY. The committee has accepted the proposal immediately passed resolution drafted supplementary agreement and played with safety of members as his investment wiil be nil if he demolish the building and he is going to load TDR after 9 th flr . The new towers will be of 21 flr. The MOU PROVIDES THAT TDR SHALL BE LOADED IN THE NAME OF SOCIETY BEFORE VACATING PREMISES BY MEMBERS BUT NOW IT IS DENIED. WHAT IS THE REMEDY FOR MEMBERS IF AFTER DEMOLITION HE DOES NOT PROCEED OR MAKE NO RENT AS BUILDING IS OF EXISTING 147 MEMBERS ON 4550 SQ MTS PLOT. FURTHER THE DEVELOPER HAS OFFERED THE SOCIETY 1ST FLR OF NEWLY BUILDING AS MORTGAGE. IS THE MORTGAGE LEGALLY ENFORCEABLE WHEN THERE IS NO EXISTENCE OF DEBT BETWWEN THE TWO PARTIES. viz. DEVELOPER AND SOCIETY . I have informed society that guarantee is for performance and mortgage is not a substitute for it it is a security for loan granted. Society has agreed and threaten me that you are misguiding others /building is going to collapse etc etc. Now I have heard though not officially announced that the individual agreement is not going to be registered but he will notarize it on Rs 100 stamp paper. How can an individual member ensure his safety .As only registered agreement are enforceable in a court of law Is this case be accepted in consumer forum how much are the chances. Please guide me urgently as I am a senior citizen having no income except pension and some interest.. Further I have no son who can go here and there for advocate/ court. How much charges in civil court and time taken. I am very much interested in redevelopment but as per original terms of tender and redevelopment agreement executed. Regards, JAYESH CHOKSI 8080546187

A. Too big question to read
Kishan Dutt Kalaskar Retired Judge Exp: 33 Year(s) Bangalore
Shanti Ranjan Behera Experience: 22 Year(s) Bhubaneswar

Anonymous

Posted 1 week ago

My case is related to civil petition in the high Court .The court said respond shall not fill up one vacancy,case is running but by giving the reason of time my case is not taken for hearing and date always extended to 6 months without any hearing.what can I do next? Case is pending from 2 years.

A. You should move Memo of early hearing or dispose case earlier
Rameshwar Dadhe Exp: 2 Year(s) Aurangabad
Manjula Shanmugasundaram Experience: 18 Year(s) Chennai
Kishan Dutt Kalaskar Retired Judge Experience: 33 Year(s) Bangalore
Shanti Ranjan Behera Experience: 22 Year(s) Bhubaneswar

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