Search
  • Pratibha Kumari

Principle of Inheritance under Muslim Law


Authored By- Pratibha Kumari


Abstract

For the general inheritance of property, the Indian Succession Act, 1925 had been formulated. According to this Act, every Indian has the right to get his equal share in the property of his deceased ancestor. Apart from that, Muslims have their personal laws dealing with the inheritance of property. Inheritance is one of the most essential subjects of Muslim Shariat Law. Unlike Hindu law, Muslim Law does not make any differentiation between self- acquired property and ancestral property and thus all the property (whether inherited or acquired by own) of a Muslim is considered to be an individual property and is liable for inheritance by successors of deceased. If a Muslim marries under the Special Marriage Act,1974 then after his death, his property would be inherited according to the Indian Succession Act,1925 and not according to the Muslim Law of Inheritance.


Introduction

Islamic Law provides the provision for the inheritance of all the properties of a deceased person because no differentiation is done between moveable and immoveable property. The traces of the Muslim Law of Inheritance can be seen in 4 sources i.e. Quran, Sunna, Ijma, and Qiyas. Islamic Law identifies two kinds of heirs, Sharers (persons who are liable to get the particular share in the deceased’s property) and Residuaries (persons who take up the share in the property left out, after taken by sharers). In the case of non-testamentary inheritance, Shariat Act, 1937 is applicable.


While on the other side, if the succession is testamentary, relevant Shariat Law as applied to Sunnis and Shias would be applicable. In case of inheritance under Muslim Law, the property is transferred to legal heirs after certain apportionment (like debts on deceased, funeral expenses, Will, etc.) is deducted. Even the holy book of Muslims i.e. Quran also detailed the allocation of the property after the death of a pro-tem owner. Quran said that Man has been considered as the trustee of the property and means which he owns. When he dies, all of his ownership over his property gets over. After this, all his wealth is to be reallocated as per the directions of the Allah Taala (i.e. Universal Owner). Generally, there are 4 duties which needed to be performed (meet out from the property of deceased before inheriting by legal heirs) on the demise of a Muslim, which is as follows-


1. Funeral and cremation expenses.

2. Clearing all the debts of the deceased.

3. Ascertain the worth or Will of the dead owner.

4. At last, allocate the remaining property to the heirs and relatives of the deceased following the Shariat Law.


Basic Principles regarding inheritance under Muslim Law-

1. Nature of inheritable property- The property which is accessible for an inheritance to the legal heirs is known as inheritable property. Any kind of property (either corporeal or incorporeal) could be inherited under the Muslim Law. All the properties which were owned by the deceased at the time of his death are entitled to inheritance. The costs applied to fulfill any or all the four duties (if remaining) are deducted from the property and then the leftover portion is inherited by the next successors of the deceased. Shia Law allows a childless widow to get 1/4th of the share from the deceased husband’s moveable property.


2. Right by Birth- The successor is only entitled to get an inheritance in the property after the death of the owner. Muslim Law follows the principle Nemoest Haeres Viventis (No one can be an heir of a living person). There is no concept of right from birth under Islamic Law. Any child born does not become the legal heir or gets right to the property until the death of the owner took place. The person to get inheritance must be alive after the death of his predecessor and if the contrary happens then he will not be entitled to inheritance.


3. A child not yet born or in the mother’s womb- A child who is still in the mother’s womb is entitled to get the share in the inherited property if he is born alive. His share will cease to exist if the child in the womb is born dead.


4. Inheritance rights to stepchildren- Step Children cannot inherit the property of step-parents or vice versa. However, a stepchild can take over the property of his biological father or mother or vice versa. But Step Brothers and sisters can inherit each other’s property.


5. Basic Doctrine of Representation- The doctrine explains that if the heir of the ancestor dies before the death of the ancestor, then the next heir of the former one will be qualified for getting a share in the ancestor’s property as representing his deceased predecessor. This doctrine is not followed in the Muslim Law of inheritance. Under Islamic law, the concept is that closer heir excludes remoter heir from inheriting the property. Illustration- A had two sons B and C. B and C each had one son D and E respectively. If B died before A then the share of B will be given to C instead of to the former’s son D. D will be excluded by C.


6. Per-Capita and Per-Strip Allocation- The former is recognized under Sunni law and the latter is recognized by Shia Law. According to per-capita, the property of Progenitor would be equally allocated among his legal heirs without considering to which branch the heir belongs. Illustration- A had a son B and two grandsons C and D. Suppose if B died before A and later on A died, then the property of A is divided between his two grandsons equally. According to per-strip, the property of Progenitor is divided among the heirs according to the share available to their branch/ strip to which they belong. Illustration- A had two sons B and C. B had two sons D and E. C had two sons F and G. B and C died before A. The property of A was equally divided between B and C. So D, E will get their share from the ½ property available to their predecessor B. Similarly F, G would get their share from another ½ portion assigned to their predecessor C.


7. Inheritance rights of women- Under Muslim Law, both males and females inherit the property of deceased ancestor concomitantly. However, males get double share than females belonging to the same degrees. Females can get their share of money and property in the form of Mehr and Maintenance from her husband. These two rights are only given to Muslim females and not to males.


8. Principle of Primogeniture- This principle has not been recognized by Muslim Law. Primogeniture is the proposition of Inheritance where the eldest son of the deceased ancestor gets some privileges. But under Muslim Law, all the sons get an equal share in the inherited property. The exception is under Shia Law, which allows the eldest son (must be sound-mind) with a special right to inherit his father’s outfits, sword, ring, and copy of the Holy Quran.


9. Death of two heirs concomitantly- Under Muslim Law, if the two heirs died at the same time and it is not identifiable that who died first, then both the heirs would be assumed to have died at a single moment. The inheritance to the property would be transferred excluding the dead heirs.


10. Missing persons- The Muslim law prescribes that if any Muslim person is not known or had gone missing for 7 years and cannot be proved to be alive, then he/ she will be presumed to have died and his/ her property will be open for inheritance. Hanafi law says that a person is deemed to have been dead if not known for 90 years from the date of his missing and till, his property would not be open for an inheritance, but it is only a rule of evidence and not of succession and had been overruled by Evidence Act,1872.


11. Escheat- Government would inherit all the properties of a Muslim person who died without having any legal heir through the process of escheat.


Case-Laws-

1. Shukurullah v Zohrabibi[1], SC held that each Muslim heir is responsible for the deceased’s debt upto their prescribed shares only.


2. Rukamanibai v. Bismillabai[2], SC held that a person converted to Islam died leaving behind his only daughter, in that case, the daughter can get her share and residuary share in the deceased’s property.


Conclusion

Hence, the Muslim Law of Inheritance had equally recognized both males and females to get their share in the ancestor’s property although the proportion is different. There are certain common principles followed under Muslim Law for inheritance (as discussed above). Under Muslim Law, for the purpose of inheritance, there is no such difference in kinds of property. Thus, all the properties of the deceased ancestor are inherited by his successors in defined proportions.

[1] (AIR1932) All512 [2] (AIR1993) MP 45


References

1. https://blog.ipleaders.in/

2. https://districts.ecourts.gov.in/

3. https://www.slideshare.net/

4. https://en.wikipedia.org/