Introductory :- The Muslim Law of inheritance is a superstructure constructed on the foundations of pre-Islamic customary law of succession. It is based on the patriarchal organisation of the family, in which are buttressed some near cognates side by side with agnates. In Islamic law distinction between the family property and the separate property has never existed, and in India Muslim law did not recognize the joint family property, though among the South Indian Muslim shaving matrilineal system, the institution of torwad‟ is recognised. The twin doctrines of the Mitakshara school of Hindu law, viz., son‟s birth right and survivorship, are also not recognized in Muslim law. Since under Muslim law, all properties devolve by succession, the right of heir-apparent does not come into existence till the death of the ancestor. Succession opens only on the death of the deceased, and then alone the property vests in the heirs. Whenever a female inherits property, she takes her share absolutely and without any restrictions.The Muslim law of inheritance is a unique aspect of Muslim law.
It is a different system of law. Prophet Mohammed said: „Learn the laws of inheritance andteach them to the people; for they are one-half of useful knowledge”. About the Muslim law of inheritance, Tayab ji observed : “The Muslim law of Inheritance has always been admired for its completeness as well as the success with which it has achieved the ambitious aim of providing not merely for the selection of a single individual or a homogenous group of individuals, on whom the estate of the deceased should devolve by universal succession, but for adjusting the competitive claim of all the nearest relations”.
The Muslim law of succession is a codification of the four sources of Islamic law, which are
(1) The Holy quran,
(2) The Sunna — that is, the practice of the Prophet,
(3) The Ijma — that is, the consensus of the learned men of the community on what should be the decision on a particular point, and
(4) The Qiya — that is, an analogical deduction of what is right and just in accordance with the good principles laid down by God.
General Principles :-
Customary principles of succession
In the pre-Islamic Arabia, the law of inheritance was based on, what is called, comradeship-in-arms, and, on this basis, even the wife and the children were excluded from inheritance. In the broadest possible sense, the law of inheritance was based on the principles of agnatic preference and exclusion of females. The four basic principles of the pre-Islamic law of succession were : first, the nearest male agnate or agnates succeeded to the total exclusion of remoter agnates. Thus, If a Muslim died leaving behind a son, and a son of a predeceased son, then the son inherited the entire property and the grandson was totally excluded. Secondly, females were excluded from inheritance; so were cognates. Thus, a daughter or a sister or a daughter’s son or sisters son could never succeed to the property. Thirdly, the descendants were preferred over ascendants, and ascendants over collaterals. For Instance, In the presence of a son, father could not succeed. Similarly, In the presence of father, brother could not inherit. Fourthly, where there were more than one male agnates of equal degree, all of the inherited the property and shared it equally, taking per capita. For example, if a person died leaving behind three brothers, all of them succeeded and each took one-third of the estate.
Types of heirs
There are two types of heirs in under Muslim law: Sharers and Reliquaries. Sharers are entitled to specific fractions of the property of the deceased whereas Reliquaries, as the name suggests, are distributed any residual share in the property.
There are 12 relations that fall under the category of Sharers in Muslim law:
4. Daughter of a song (or a son’s son or a son’s son’s son’s)
6. Paternal grandfather
8. Grandmother on the side of the males
9. Full sister
10. Consanguine sister
11. Uterine sister
12. Uterine brother
Heirs and their allotted Shares :-
The husband gets 1/2 if there is no (a) child or (b) child of son how low so ever (h.l.s);if there is (a) child or (b) child of son( h.l.s) then husband gets 1/4.
The widow gets 1/4 if there is no (a) child or (b) child of son how low so ever(h.l.s);if there is (a) child or (b) child of son h.Ls then widow gets 1/8.If the porosities had left more than one widow, all the widows share equally out of the1/4 or 1/8 share, as the case may be.3.
The father will be treated as Residuary if there is no (a) child or (b) child of son how low so ever (h.l.s);if there is (a) child or (b) child of son h.l.s then Father gets 1/6.4.
True grand-father is entitled to inherit only in the absence of father.It means if the propositus dies leaving behind both father and a true grand-father, the true grand-father cannot inherit.If there is no father, the true grand-father inherits like a father. It means if there is no father, the true grand-father would become residuary in the absence of children. But in the presence of children a true grand-father gets 1/6.5.
The share of mother is 1/3 in the absence of (a) child, or (b) child of a son h.Lsor (c) two full sister, or (d) two full brothers, or (e) one brother plus one sister, whether full, consanguine or uterine.If the presence of above-mentioned relations, mother share is 1/6.
A paternal grand-mother is excluded from inheritance in the presence of (a) mother, or (b) father or (c) a nearer true-grand-mother whether maternal or paternal.A maternal grand-mother is excluded from inheritance in the presence of (a) mother, or(b) a nearer maternal or paternal grand-mother.If not excluded, the share of true grand-mother is 1/6. Two or more grand-mothers get1/6 jointly.
The share of one daughter is 1/2.If there are two or more daughters, the share is 2/3 to be divided equally among them.But daughter together with son is treated as agnatic heir,
i.e.,inherits as Residuary.
The sons‟ daughter inherits only in the absence of (a) two or more daughters, or (b) son, or (c) higher son‟s son, or (d) two or more higher son‟s daughter.
In the absence of above relations, the son‟s daughter gets 1/2 if single and 2/3 if more than one.If son‟s daughter is together with one daughter, the share of sons‟s daughter is 1/6whether such son‟s daughter is single or more. For example, if there is a daughter and two son‟s daughters, the share of son‟s daughter would be 1/6 which would be divided equally among them,i.e.,each son s daughter would get 1/12.Son‟s daughter together with son‟s son is treated as agnatic heir,i.e.,inherits as Residuary.
The share of one full sister is 1/2, if number of sister is more than one, shareis 2/3 to be divided equally among them.If full sister is together with full brother, she becomes an agnatic heir and inherits as Residuary.A full sister is excluded from inheritance in the presence of (a) child, or (b) child of son (c) father, or (d) father‟s father.
The share of one consanguine sister is 1/2, if number of consanguine sister is more than one, share is 2/3 to be divided equally among them.With one full-sister, the share of consanguine sister is 1/6 whether single or more.
A consanguine sister is excluded from inheritance in the presence of (a) child, or (b)
child of son h.l.s or (c) father, or (d) father‟s father, or (e) two full sisters, or (f) one full brother With consanguine brother, the consanguine sister becomes agnatic heir and inherits as Residuary.
The share of one uterine brother is 1/6, if there are two or more uterinebrothers, their share is 1/3 to be equally divided among them.Uterine brother is excluded from inheritance in the presence of (a) child, or (b) child of son or (c) father, or (d) father‟s father.
The share of one uterine sister is 1/6, if there are two or more uterinesisters, their share is 1/3 to be equally divided among them.Uterine sister is excluded from inheritance in the presence of (a) child, or (b) child of son (c) father, or (d) father‟s father
No right by birth
Under the Hindu law, a coparcenary gains an interest or right in the property of the deceased the moment such a coparcenary is born. This right to property by birth is called Janmaswatvavad. But because there is no concept of a joint family under Muslim law, there is no concept of right to property by birth either. Muslim law follows the principle of nemoesthaeresviventis i.e. nobody can become an heir to a living person. This means under Muslim law, the legal right to inheritance of property arises only upon the death of the deceased and not upon the birth of the child.
Another point to note is that an heir can only gain a share in the property of the deceased if the heir outlives the deceased. However, if the heir apparent dies before the deceased then he or she will gain no right to inheritance and thereby their family members cannot take up their share in place of them.
Applicability of certain rules
:-The main principles of succession are as follows:
1. Rule of representation,
2. Rule of exclusion;
3. Rule of primogeniture;
4. Rule of vested inheritance; and
5. Rule of spes successionis
Doctrine of Representation under Muslim Law
The doctrine of representation is a principle in inheritance law which states that if an heir to an ancestor dies during the lifetime of the ancestor, but the deceased heir leaves behind living heirs of his or her own, then these heirs of the deceased heir will have the right over the deceased’s share in the ancestor’s property since they will act his representatives.
While the doctrine of representation is a widely recognised concept and followed by Hindu, English and Roman law, it is not widely practised in Muslim Law. However, the doctrine of representation is practised to some extent under Shia law for the purpose of calculating the shares of the heirs, more specifically, to determine the shares of heirs to a predeceased brother, predeceased sister, predeceased daughter and predeceased aunt.
Take for instance a family tree wherein A is the common ancestor of two sons, B and C. B has two children, D and E and C has two children F and G.
Under Muslim law, the nearest heir to the ancestor excludes the remote heirs in case of inheritance. If B dies in the lifespan of A, then upon A’s death, only C can inherit the property of A. Thereby, C will exclude the children of B i.e. D and E from having any right to inheritance over A’s property. Had doctrine of representation been applicable to this case, then the heirs of B viz D and E would have gained rights to inheritance by representing B. This means that C would receive one- half of A’s property and the other half would be shared by D and E.
The reason that Muslim law does not apply the doctrine of representation is that under Muslim law the right to inheritance does not arise until the time the ancestor has died. This means that a right that is not vested with any particular member, to begin with, cannot be passed on or be used by the deceased person’s heirs.
Disqualified Heirs :-
Disqualified heirs are those who are excluded from inheritance. In India,no Muslim who is entitled as an heir, to inherit the estate of a deceased shall be disqualified from inheritance except in the following mentioned cases:
- Childless widow
- Disqualification provided by some law or custom.
How is property distributed under Muslim Law?
Property can be distributed by two methods under Muslim law: distribution either per capita or per stripes.
Per capita distribution:
Per capita distribution of property is mainly followed by the Sunni Muslims. In per capita distribution, the property is divided equally among all the heirs. This means that the number of heirs of the deceased determines the amount of share for each heir in the property of the deceased. The branch of the family to which the heir belongs to does not influence the inheritance that he or she is subjected to receive.
Per Stripe’s distribution:
Per stripes distribution of property is followed by the Shia branch of Islam. Under per stripes distribution, a property is distributed among the heirs of a branch (strip) of the family. Accordingly, the family branch and the number of people that exist in that particular branch of the family will determine the amount of share in the property of the family members.
Take this family free for instance: A is the father of two sons: B and C. B, in turn, have two children: D and E. C has three children: F, G and H.
Now, upon A’s death, his property is calculated to be around Rs. 12,000. According to per stripes distribution, B and C will gain equal shares of A’s estate which is Rs. 6000 each. Now when B and C die, their property of Rs. 6000 will be distributed among the members of their stripes. In B’s stripe, D and E will inherit B’s Rs. 6000 in equal portions of Rs. 3000 each. In C’s branch, there are three heirs: F, G and H. All three of them will inherit C’s estate of Rs.6000 in equal portions. Which means that F, G and H will be entitled to Rs. 2000 each?
Inheritance rights of Females
Unlike Hindu law, there is no difference between the right to inheritance between men and women under Muslim law. Under Shia law, women usually receive half of the share amount that the males get. This is reasoned so because Muslim women receive maintenance and also mehr at the time of married whereas Muslim men are entitled only to ancestral property. However, whether or not this actually qualifies as equality between men and women is debatable.
Right of the widow
Widows are also entitled to property in a succession as per Muslim law.
If the widow does not have any children, then she will be entitled to one- fourth of the property that her deceased would receive. The amount that she will actually receive would be calculated after paying off the debts and legal and funeral expenses of her husband.
If the widow does have children or grandchildren, then she will be entitled to one- eighth of the share of her husband’s property.
But a widow has no right to inheritance if she had married her husband while the husband was ill and died at a later point of time, provided that sickness was continuous with no period of recovery or if such a couple had not consummated the marriage till the time of the death of the husband. On the other hand, if the husband who is ill divorces his wife and thereafter passes away from that illness, the widow will be entitled gain a right to inherit till the time that she does not marry again.
Right of a child in a womb
Under Muslim law, a child in the womb of his mother can only be entitled to inherit property if the child is born alive. This means that even in its embryonic stage, a child is considered to be a living person and it is immediately entitled to the inheritance of property, so long as the child is born alive. If the child is not born alive, then its interest in the property is immediately cancelled and shares in the property will be distributed in such a manner as if the child/ embryo had not existed at all.
Right of a stepchild
Stepchildren do not have any rights to inheritance to the property of the stepparents under Muslim law. However, a stepbrother does have tithe right to inherit the property of his stepbrother or stepsister.
Escheat under Muslim Law
Escheat is the process by which the government can take over the rights and possession of the property of a deceased. The state can only take over a deceased’s property if the deceased has no living legal heirs at all. This is because the state enjoys the status of being the ultimate heir to every deceased person.
What if a Muslim is married under the Special Marriage Act, 1954?
The Special Marriage Act, 1954 is a secular law meant to enable inter-religious marriages. The Act allows persons of any religion or faith to have a legal marriage. However, under Muslim law, if a Muslim person gets married under the Special Marriage Act, 1954, he or she will no longer be considered a Muslim person for the purpose of inheritance. This also means that when such a person who married under the Special Marriage Act, 1954 dies, his or her property will also not devolve as per Muslim Law. Instead, the devolution of their property will happen as per the provisions of the Indian Succession Act, 1925.
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