Inheritance is basically the transfer of status to the living person from the deceased with respect to the specific estate/property objects .Generally the laws of succession are divided into two groups: testamentary and intestate. Majority of the modern systems of succession are based on the individual’s freedom to decide the future of devolution his estate upon his death. These are known as testamentary systems of succession. The case in which there is compulsory imposition of succession rules by requiring that on the death of a person his property be transmitted in a foreseeable way to those entitled to it is known as the intestate succession system.
Inheritance particularly in the Islamic world is one of the commonest ways of acquiring land or access to land. There is no specific definition of the word inheritance in the Holy Quran but has been defined by the Muslim jurists in different ways. Sir Abdur Rahim’s definition of inheritance is that it is the transfer to the heir of the deceased’s rights and obligations. According to Coulson it is the distribution of assets/estate of the deceased that remain after the satisfaction of his funeral expenses, debts, and valid bequest. In general, the law of inheritance may be described as the transfer of all the assets of the deceased person to the legal heirs along with any transferable rights as well. The rights which can be transferred comprises of such rights as property, debts and other rights from which the legal heirs can receive compensation on behalf of the deceased person. Irrespective of their specific faith, generally in Muslim societies, inheritance rules concerning an individual’s property upon death are derived from religious sources. The principles of inheritance in Qur’an and Hadith cater a wide range of beneficiaries and outline how to divide the estate among the heirs under various scenarios after the death of a person. It deals with two main issues:
1. To provide a system for the distribution of property among heirs, in order to avoid fight.
2. To establish a system based upon justice and avoid concentration of wealth in a single entity. Due to the complexity of the principles found in various religious sources, the Muslim societies on the other hand have elaborated inheritance rules which allow the distribution of wealth in a systematic fashion. This systemization is based on jurisprudential methods.
Muslim law of succession constitutes four sources of Islamic law –
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
4. The Qiya – that is, an analogical deduction of what is right and just in accordance with the good principles laid down by God.
Muslim law recognizes two types of heirs, Sharers and Residuaries. Sharers are the ones who are entitled to a certain share in the deceased’s property and Residuaries would take up the share in the property that is left over after the sharers have taken their part.
The Sharers are 12 in number and are as follows: (1) Husband, (2) Wife, (3) Daughter, (4) Daughter of a son (or son’s son or son’s son and so on), (5) Father, (6) Paternal Grandfather, (7) Mother, (8) Grandmother on the male line, (9) Full sister (10) Consanguine sister (11) Uterine sister, and (12) Uterine brother.
The share taken by each sharer will vary in certain conditions. For instance, a wife takes 1/4th of share in a case where the couple is without lineal descendants, and a one-eighth share otherwise. A husband (in the case of succession to the wife’s estate) takes a half share in a case where the couple is without lineal descendants, and a one-fourth share otherwise. A sole daughter takes a half share. Where the deceased has left behind more than one daughter, all daughters jointly take two-thirds.
If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be sharers and become residuaries instead, with the residue being so distributed as to ensure that each son gets double of what each daughter gets.
Non-Testamentary and Testamentary succession under Muslim law:
In 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, situated in the state of West Bengal, Chennai and Bombay, the Muslims shall be bound by the Indian Succession Act, 1925. This exception is only for the purposes of testamentary succession.
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. If an heir lives even after the death ofthe ancestor, he becomes a legal heir and istherefore entitled to a share in the property. However, if the apparent heir does not survive his ancestor, then no such right of inheritance or share in the property shall exist.
Distribution of the Property
Under the Muslim law, distribution of property can be made in two ways – per capita or per strip distribution. The per capita distribution method is majorly used in the Sunni law. According to this method, the estate left over by the ancestors gets equally distributed among the heirs. Therefore, the share of each person depends on the number of heirs. The per strip distribution method is recognised in the Shia law. According to this method of property inheritance, the property gets distributed among the heirs according to the strip they belong to. Hence the quantum of their inheritance also depends upon the branch and the number of persons that belong to the branch.
Rights of females
Muslim does not create any distinction between the rights of men and women. On the death of their ancestor, nothing can prevent both girl and boy child to become the legal heirs ofinheritable property. However, it is generally found that the quantum of the share of a female heir is half of that of the male heirs. The reason behind this is that under the Muslim law a female shall upon marriage receive mehr and maintenance from her husband whereas males will have only the property of the ancestors for inheritance. Also, males have the duty of maintaining their wife and children.
Widow’s right to succession
Under Muslim law, no widow is excluded from the succession. A childless Muslim widow is entitled to one-fourth of the property of the deceased husband, after meeting his funeral and legal expenses and debts. However, a widow who has children or grandchildren is entitled to one-eighth of the deceased husband’s property. If a Muslim man marries during an illness and subsequently dies of that medical condition without brief recovery or consummating the marriage, his widow has no right of inheritance. But if her ailing husband divorces her and afterwards, he dies from that illness, the widow’s right to a share of inheritance continues until she remarries.
A Child in the Womb
A child in the womb of its mother is competent to inherit provided it is born alive. A child in the embryo is regarded as a living person and, as such, the property vests immediately in that child. But, if such a child in the womb is not born alive, the share already vested in it is divested and, it is presumed as if there was no such heir (in the womb) at all.
Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by Government through the process of escheat.
The rules of exclusion from inheritance
There are certain exceptions in the Islamic law of inheritance which debars a person from succeeding to the estate of the praepositus, despite of the fact that he may stand to the deceased person in relation of an inheriting kinsman. These rules of inheritance are called the legal causes of exclusion.
The reasons which exclude a Muslim from inheritance are four in number, which are:
1. Homicide (al-Qatl): The Holy Prophet said that a killer cannot inherit from a victim (dead).Therefore; all Muslim scholars have unanimous agreement that a murderer cannot inherit from the victim. But there are certain qualifications to this particular rule of inheritance if murdering is justified or in self defense or war or unintentional etc. The four Sunni Madhabs have slight differences over the details of some form of killings.
A. Hanafi Fiqh bars the killer from inheritance except with the following qualifications:
1. Killing justified by Shariah. 2. in self-defense killing. 3. Lawful killing. 4. Act of a minor/mad man. 5. Direct killing by minor/lunatic. 6. Indirect killing. B. Shafii School of thought bars the killer from inheritance including minor/lunatic as well.
C. According to Maliki Fiqh the killer is barred from inheritance including minor/lunatic killer except if
(1) Killing justified by Shariah; (2) In self-defense killing; (3) killing in retaliation; (4) killing without intention.
D. According to Hanbali Fiqh a killing which can be punished (Qisas as well) bars a person to inherit except if such:
(1) Murder justified by Shariah; (2) In self-defence killing/war; (3) Death in retaliation.
2. Religious Differences (Inheritance by a Muslim from Non-Muslim and from Muslim by a Non Muslim): The Holy Prophet Said that “A person believing in Islam cannot inherit from a Non Muslim, neither a Non-Muslim can inherit from a believer of Islam”.
3. Slavery & Inheritance: All Muslim Scholars are agreed on this issue that a slave cannot inherit from his/her master neither a master can inherit from a slave.
4. Differences in Citizenship: A person residing in Dar-ul-Kufr can’t inherit from a person of Dar ul-Islam. But, Muslim jurists of present time consider this application only to those persons who do not believe in Islam
1. In Hakim Rehman vs. Mohammad Mahmood Hassan1, it was held that upon the death of a Mohammedan, the whole estate devolves upon his heirs at the moment of his death and the heirs succeed to the estate as tenants-in-common in specific shares.
1 AIR 1957 Pat 559
2. In Rukmanibai vs. Bismillavai2, it was held that where a person, who has converted to Islam, dies leaving behind his daughter only and no residuary, shall be entitled to her share as well as residuary share in the property of the deceased.
3. In Shukurllah vs. Zohra Bibi3, it was held that each heir of the Mohammedan is liable for the debt of the deceased to the extent only of a share of the debts proportionate to his share of the estate.
As law of inheritance is an important element of Islam; which is defined as succession and entrance into the rights of the deceased person with respect to his/her property and has mandatory application under the Shariah. When a Muslim dies, then the relatives of the deceased person
2 AIR 1993 MP 45
3AIR 1932 All.552
have a legal share in his property/estate. After the death of a Muslim, four functions needs to be performed by the heirs:
1. Funeral and burial payment; 2.Debt payment, if any; 3. Will execution of the deceased if there is any (not more than 1/3 of the estate). 4. Distribution of the deceased remainder estate/property as per Islamic law.
It can be concluded from the above that Islam is a religion with complete code of conduct and inheritance is one of them and by proper application of the Islamic Law of Inheritance as well as the other Laws of Islam, it is possible for u.
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