SUBJECT: ASSISTANCE ON WAQF REVOCATION. A FATHER HAS GIVEN ALL HIS PROPERTIES TO WAQF ON THE INTENTION OF NOT GIVING INHERITANCE TO HIS CHILDREN FROM HIS FIRST MARRIAGE. HE HAS MARRIED TWICE AND HIS FIRST WIFE IS STILL HIS WIFE LEGALLY. AND HAVEN'T HAD ANY CHILDREN FROM THE SECOND MARRIAGE. DURING HIS LIFETIME HE HAS REFUSED EVERY RIGHT OF HIS FIRST WIFE AND THE CHILDREN FROM IT. ON TOP OF THAT HE WAS AN ABUSIVE HUSBAND AND ATTEMPTED TO MURDER THE WIFE. BEFORE HE PASSED AWAY HE HAS DONATED ALL HIS REMAINING PROPERTIES TO WAQF. IN THIS CASE IS THE WAQF STILL VALID OR CAN IT BE REVOCED.
Dear Client, As per your query, It can be challenged by the first wife and children of the father on the ground of making a malafide intent to deprive them of their inheritance and rights if the waqf is so made because it would violate their legal entitlements under Muslim personal law as well as the Waqf Act, 1995. Whereas a waqf is mostly irrevocable post valid creation, however, in case evidence shows the existence of such a waqf was to outsmart or to defy lawfully incumbent obligations of the father like maintenance under Section 144 of the BNSS, 2023 and rights of inheritance under Muslim succession law, the court will term it as fraudulent. Moreover, his past history of abuse and attempted murder is certainly a very good argument against the preference to argue the case as one in bad faith and even fraud, since it would be against the purpose of a waqf if it was made for an essentially charitable or religious purpose. Feel free to book an appointment for a detailed discussion on the issue.
Dear Sir, Under Muslim law, the concept of ancestral and self-acquired property is not recognised. As long as the person is alive, the property owned by him is his absolute property and no right of any legal heirs accrues until his death. Upon his demise, the legal heirs become entitled to a definite fraction of the estate of the deceased. Under Muslim law, distribution of property can be made in two ways, i.e. per capita or per strip distribution for sunnis and shias respectively. The quantum of their inheritance would depend upon the branch and the number of persons that belong to the branch. Under Muslim laws, the right to claim inheritance may be exercised during the lifetime of the person claiming such right. The rights of the person living in the property for thirty years vis-à-vis that of persons who have not claimed any right to the property would have to be examined in light of the specific facts of the case and the principles governing the Muslim law in India. Rules Governing Inheritance of Property under Muslim Law Under the Indian legislative scheme, the rules that govern inheritance under the Muslim law depend on the kind of property involved. In cases of Non testamentary succession, the Muslim Personal Law (Shariat) Application Act, 1937 gets applied. On the other hand, in case of a person who dies testate i.e. one who has created his will before death, the inheritance is governed under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis. In cases where the subject matter of property is an immovable property which is situated in the state of West Bengal or comes within the jurisdiction of Madras or Bombay High Court, the Muslims shall be bound by the Indian Succession Act, 1925. This exception is only for the purposes of testamentary succession. It is noteworthy that the Muslim law does not make any strict distinction between any two or more type of properties such as movable and immovable, corporeal and incorporeal etc. Since there is no such distinction between different kinds of properties, therefore, on the event of death of a person, every such property which was within the ambit of ownership of the deceased person shall become a subject matter of inheritance. The amount of property that shall become the subject matter of inheritance and is made available to the legal heirs to inherit shall be determined after making certain appropriations. Such appropriations may include expenses paid in lieu of funeral, debts, legacies, wills etc. After making all these payments, the left over property shall be termed as the inheritable property. Principles governing rules of inheritance of joint or ancestral property Unlike Hindu law, there is no provision of distinction between individual i.e. self acquired or ancestral property. Each and every property that remains within the ownership of an individual can be inherited by his successors. Whenever a Muslim dies, all his property whether acquired by him during his lifetime or inherited from his ancestors can be inherited by his legal heirs. Subsequently, on the death of every such legal heir, his inherited property plus the property acquired by him during his lifetime shall be transferred to his heirs. Birth right The principle of Hindu law of inheritance of Janmaswatvad does not find place in the Muslim law of inheritance. The question of inheritance of property in Muslim law comes only after the death of a person. Any child born into a Muslim family does not get his right to property on his birth. In fact no such person holds becomes a legal heir and therefore holds no right till the time of death of the ancestor. If an heir lives even after the death of the ancestor, he becomes a legal heir and is therefore entitled to a share in property. However, if the apparent heir does not survive his ancestor, then no such right of inheritance or share in the property shall exist. Male and female children, a son's share is double that of a daughter's daughter is the absolute owner of whatever property she inherits Till a daughter is not married, she enjoys the right to stay in her parents' house and seek maintenance In case of a divorce, charge for maintenance reverts to her parental family after the iddat period (approximately three months) is over. However, if her children are in a position to support her, the responsibility falls on them. In the famous Shah Bano case, the Supreme Court had held that in case of a divorce, it is the responsibility of the husband to make reasonable and fair provision to maintain his former wife even after separation under Section 3 (1Ha) of the Muslim Women (Protection of Rights on Divorce) Act, 1986. This period extends beyond iddat as the woman retains control over her goods and properties. SHARE OF WIDOW In the event of the death of her husband, a widow gets the one-eighth share (in case there are children) but will get one-fourth share (if there are no children). If there is more than one wife, the share may come down to one-sixteenth.
