General Principles of Inheritance Under Muslim Law

“Learn the Laws of inheritance and teach them to the people, for they are one-half of the useful knowledge”  –  said by Prophet Mohammed.

Introduction

We know that we are living in a constitutional civilized society, but we have no Uniform Civil Code in India except in Goa. Every religion practiced in India has governed by its respective personal laws. Islamic Law of inheritance is a mixture of the pre-Islamic customs and the rules introduced by the Prophet[1].

The Muslim Law of Inheritance derives its principles from four principal sources of Islamic Law. They are as follows-

  • The Holy Quran
  • The Sunna (it is the practice of the prophet)
  • The Ijmaa (it is the consensus of the learned men of the community on what should be the decision over a particular subject matter)
  • The Qiyas (it is the deduction based on analogy on what is right and just in accordance with God)[2].

Inheritance means the transfer of property to the living person from the deceased along with any other transferable rights. Inheritance has a different meaning in Islam. There is no particular definition of Inheritance in the Quran but many Scholars have defined it in their own ways. According to Sir Abdur Rahim, inheritance is the transfer of the rights and obligations of the deceased person to his/her heirs[3].

Under the Indian legislative Scheme, the rules that govern inheritance under Muslim law depend on the kind of property involved. Like, in case of non-testamentary succession, the Muslim Personal Law (Shariat) Application Act, 1937, will govern it. On the other side, in the case of testamentary succession (it means, the person has created his will before the death); in this case, the Shariat law of Muslim applies for the inheritance of the property of the deceased, which is as applicable to Shia and Sunni[4].

In cases where the subject matter of the property is an immovable property, specifically situated in the state of West Bengal or property falling within the jurisdiction of the Madras and Bombay HC, the Indian Succession Act, 1925, shall bound on the Muslims. This exception is only applicable to testamentary succession[5]

Types of Heirs:-

There are two types of heirs under Muslim law – the Sharers and the Residuary. Firstly, the Sharers are the ones who are entitled to a certain share in the property of the deceased and, secondly, the Residuary (as the word Residuary itself say) are the ones who would take up the share in the property that is left over after the Sharers have taken their part from the property[6].

Total 12 relations fall under the category of Sharers in Muslim Law:

  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 or the male line,
  9. Full sister,
  10. Consanguine sister,
  11. Uterine sister, and
  12. Uterine brother.

The share taken by each sharer will differ in some conditions. For example, a wife of a deceased will takes 1/4th of the share in case where the couple is without lineal descendants, and 1/8th share otherwise. A husband (in case of succession to the wife’s estate) takes a half share in case where the couple is without lineal descendants, and a 1/4th share otherwise. A sole daughter takes a half share. Where the dead person has left behind more than one daughter, all daughters jointly take 2/3rd. If the dead person had left behind sons and daughters, then the daughters stop to be sharers and become residuary instead, with the residue being so distributed as to make sure that each son gets double of what each daughter gets.[7]

Distribution of Property under Muslim Law:

Under the Muslim Law of Inheritance, the distribution of the property can be done in two ways –

1. Per Capita Distribution – This method generally used in Sunni law. According to this method, the property leftover by the ancestors will get equally divided among the heirs. Therefore, the number of heirs of the dead person will determine the amount of share for each heir in the property of the deceased. The heir does not represent the branch from which he or she inherits.

2. Per Strip Distribution – This method is mostly used in Shia law. According to this method, the property of the deceased is 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.

General Principles of Inheritance under Muslim Law

Unlike Hindu law, there is no provision of distinction between individuals i.e. self-acquired or ancestral property. Each property that remains within the ownership of a person 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. Consequently, on the death of every such legal heir, his inherited property and property acquired by him during his lifetime shall be transferred to his heirs[8].

The general principles associated with the Muslim Law of inheritance are as follows –

1. Nature of heritable property: The meaning of heritable property is that property which is available to the legal heirs for inheritance. After the death of a Muslim, his properties are used for paying funeral expenses, debts and wills. After the payment of these expenses, the remaining property is called heritable property.

For the purpose of inheritance, the Muslim Law does not make any difference between corporeal and incorporeal or movable and immovable property. Any property which is in the ownership of the deceased at the time of his death would be considered as heritable property.

2. Joint or Ancestral property: Unlike Hindu law, the Islamic law of Inheritance does not recognize the concept of joint family or coparcenaries property. Whenever, a Muslim dies, his properties will pass on his heirs in definite share of which the heir becomes the absolute owner. Similarly, on the death of such legal heir, the property owned by him will devolve among his legal heirs and this same process continues. Unlike Hindu law, there is no provision for Ancestral or Joint-family property. And there is also not distinction between Self-acquired or ancestral property.

3. Birthright under the Muslim Inheritance Law: Inheritance opens only after the death of a Muslim. Muslim law follows the principle of ‘nemo est haeres viventis’ i.e. nobody can become an heir to a living person. It means the legal right to inheritance of property will only arise when the death of a deceased person will take place and not upon the birth of a child.

4. Doctrine of Representation: This Doctrine is a well-known principle recognized by the Roman, English and Hindu laws of inheritance. According to this principle of Representation, the son of a predeceased son represents his father for the purpose of inheritance. The Islamic law of inheritance does not recognize this Doctrine. It is because under Muslim law the nearer ones will exclude the remoter ones.

5. Rights of Females: Under the Muslim law of Inheritance, both men and women have given equal rights. On the death of an ancestor, nothing can restrict both girl and boy child to become the legal heirs of the inheritable property. However, it is generally found that the quantum of share of female heir is half of that of the male heirs. The reason behind this is that under Muslim law a female shall receive Mehr and maintenance from her husband during marriage ceremony. Whereas, a male will only have the property of the ancestors for Inheritance and male have the duty of maintaining their wife and children.

6. Rights of a Widow: Under the Shia law, a Muslim widow who does not have any children shall be entitled to inherit one-fourth share of the property of the deceased husband. However, a widow with children or grandchildren is entitled to one-eighth of the deceased husband’s property. In cases where a Muslim man gets married during a period when he is suffering from some mental illness and without consummating the marriage, then the widow shall not be entitled to any right over her deceased husband’s property. However, in case if her ill husband divorces her and subsequently, he dies from that illness, then the widow is entitled to a share of her husband’s property until she remarries.

7. Rights of Inheritance of a child in womb: Under Muslim law, a child in the womb of a mother at the time of his/her father’s death shall only entitle to inherit the property if he or she is born alive. In case, if the child is born dead then the share, which vested in him, will cease to exist and it will be presumed that it has never existed.

8. Right of Inheritance of the stepchildren: The stepchildren are not entitled to any right to inherit the property of their stepparents. Similarly, the stepparents are also not entitled to inherit the property from stepchildren. However, the stepchild is competent to inherit the property of his Natural Father or Natural Mother. Moreover, the stepbrothers (or stepsisters) can inherit each other’s property.

9. Escheat: It refers to the transfer of right to the government to take ownership of estate assets or unclaimed property. It occurs when a Muslim person dies with no wills and no heirs, then the property of a deceased shall go to the government. The State is then considered the ultimate heir of Property.

Conclusion

The Holy Quran says “Allah has purchased from believers their persons and their wealth in lieu of Jannah”. Man is a keeper of the wealth that he owns during his lifetime. But after the death of such a person, his trusteeship over his property and wealth will get expires. And all his property should be redistributed among his legal heirs according to the directions given by Allah Taala. It can be concluded from the above that Islam is a religion with a complete code of conduct and inheritance is one of them and by proper application of Islamic Laws, it will be possible for us to make sure peaceful environment in this world and can ensure peace in the life after death.

References:

  • Pragati Ghosh, 13 General principles of inheritance under Muslim Law in India, https://www.shareyouressays.com/knowledge/13-general-principles-of-inheritance-under-muslim-law-in-india/117457
  • Carmen Teodora Popa, General Principles of Inheritance Law in the Romanian Law and the Muslim Law, No. 2 (2016), pp.15-22, AGORA International Journal of Juridical Sciences, https://heinonline.org/HOL/LandingPage?handle=hein.journals/agoraijjs2016&div=15&id=&page=

[1] LAKSHMI NARAYANA.B, II Addl.Senior Civil Judge, Kakinada, Muslim Law of Inheritance.

[2] Ramendra Pratap Singh, Law Of Succession in Muslim Law,  http://www.legalserviceindia.com/legal/article-2915- law-of-succession-in-muslim-law.html

[3] Sir Abdur Rahim, 2000. The Principles of Muhammadan jurisprudence,  P.346, Pakistan Law Publishing Company.

[4] Mitul Singh Thakur, May 12, 2020, Principles of Inheritance under Muslim law, https://www.legalbites.in/inheritance-under-muslim-law/

[5] Harsha Asnani, What are the Rules Governing Inheritance of Property under Muslim Law, https://blog.ipleaders.in/author/harsha-asnaniigmail-com/

[6] Supra.2

[7] Supra.4

[8]Supra.5

This article has been written by Chetna Gupta, BA LLB – 3rd year student at Department of Law, PIMR Indore.

Also Read – What Are The Main Sources And Schools of Muslim Law?

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