Inheritance under Muslim Law

INTRODUCTION 

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. 

Sharers 

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. 

Birthright: 

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. 

Escheat 

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 

Case Laws 

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. 

CONCLUSION 

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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