1

FAMILY LAW- II

GENERAL RULES OF SUCCESSION

SupervisedBy:

DR. PUJA SRIVASTAVA

Submitted By-:

YOGANAND
ROLL NO. -: 1986
BA LLB 2nd year 4th semester

CHANAKYA

NATIONAL LAW

UNIVERSITY PATNA

March 2020
 TABLE OF CONTENTS

INTRODUCTION 3
GENERAL PRINCIPLES OF 5
INHERITTANCE
CONCLUSION 16
BIBLIOGRAPHY 18
INTRODUCTION

The general law related to the succession can easily be referred to The Indian Succession
Act, 1925. Under this Act every Indian is entitled to equal shares on inheriting the
property on the death of a person. The exceptions are Hindus, Sikhs, Jains, Buddhists and
Muslims as they are governed under separate laws of succession. As for the persons of
different faiths than Hinduism and Mohammedan, the Indian Succession Act, 1925 applies.
We can easily segregate the laws of nontestamentary or intestate succession and inheritance
as would be applicable to Hindus, Sikhs, Jains and Buddhist and with Parsis, Christians
and Jews with that of Muslims and with persons of inter faithmarriages.1

Laws of succession applicable to Hindus, Sikhs, Jains and Buddhist; for the nontestamentary
or intestate succession/inheritance, the governing law is the Hindu Succession Act, 1956.
Laws of succession applicable to Parsis; for the intestate succession the governing
law is the Indian Succession Act, 1925 specifically under section 50 to 56 of the Indian
Succession Act, 1925. Laws of succession applicable to Christians and Jews; for the intestate
the governing law is the Indian Succession Act, 1925 specifically under section 31 to 49 of
the Act. Laws of succession governing Muslims; for nontestamentary succession the The
Muslim Personal Law (Shariat) Application Act, 1937 is applicable and where a Muslim has
died testate, the issue has to be governed under the Indian Succession Act, 1925 where a Will
relates to immovable property situate within the State of West Bengal, and that of
Madras and MumbaiJurisdiction.2

The Holy Quran states "Allah has purchased from the believers their persons and their wealth
in lieu of Jannah." Man is a trustee of the wealth that he owns for he duration of his life.
When his term of life expires, his trusteeship over his wealth and property expires. It has then
to be redistributed in accordance with the directive of The Absolute OwnerAllahTaala.
Directivesregardingthedistributionofwealthafterthedemiseoftheprovisionalownerare

1 'General Principles Of Inheritance Under Muslim Law - Rules RelatingT…'

(Slideshare.net, 2016)<http://www.slideshare.net/hanifmulia/general20-
principles20of20inheritance20under20muslim20law> accessed 22 April 2016

2 Ibid
explicitly detailed in the Holy Qurann.Inheritance Laws deals with distribution of one's
wealth after he/she expires. It deals with two keyissues:3

1. Provide laws pertaining to distribution of wealth amongst heirs, so heirs don'tfight.

2. Ensure that a just system can be established and the wealth is not accumulated into single
entity.

General Inheritance Law in Islam is based on following considerations:

1. Break up the concentration of wealth and distribution of wealth insociety.4

2. Respect right of ownership of an individual that he earned through legal means, and not
allow any individual, group or government to confiscate his property after hisdemise.5

3. Endorse and consolidate strong family system by justly distributing wealth amongst the
heirs6

4. By asking individual to write his will and providing detailed inheritance law, it
educate us that we are not an absolute master of this wealth, rather, its amanah (trust) ofAllah
that we are authorized to spend according to hisinstructions.7

5. Provide peace of mind that after our demise our family will be given their just right of
inheritance.8

6. It pays especial focus on women's inheritance, as women were denied their right to
inheritance in othersystems.9
3 Ibid

4 Ibid

5 Ibid

6 Ibid

7 Ibid

8 ibid

9 Ibid
GENERAL PRINCIPLES OF SUCCESSION AND INHERITANCE
UNDER MUSLIM LAW CAN BE SUMMARIES AS UNDER:

(1) Nature of the HeritableProperty:

Heritable property is that property which is available to the legal heirs for inheritance. After
the death of a Muslim, his properties are utilised for the payment of funeral expenses, debts
and the legacies i.e. wills, if any. After these payments, the remaining property is called
heritable property. Under Muslim law, every kind of property may be a heritable property.
For purposes of inheritance, Muslim law does not make any distinction between corpus and
usufruct or, between movable and immovable, or, corporeal and incorporeal property. Under
English law, there is some difference in the inheritance of movable and immovable property.
But, under Muslim law there is no such distinction; any property, which was in the ownership
of the deceased at the moment of his death, may be the subjectmatter ofinheritance.10

Shia Law:

Under the Shia law, a childless widow is entitled to get her share (1/4) in the
inheritance only from the movable property left by her deceased husband.11

10 'General Principles Of Inheritance Under Muslim Law - Rules RelatingT…'

(Slideshare.net, 2016)<http://www.slideshare.net/hanifmulia/general20-
principles20of20inheritance20under20muslim20law> accessed 22 April 2016

11 Ibid
In Hindu law the joint family property is divided into two categories:

 Unobstructed heritage (i.e., Apratibandhadaya):

Ancestral property is unobstructed heritage. The essential feature of unobstructed heritage,

according to Mitakshara Law is that the sons, grandsons and great grandsons acquire an
inherit in the property inherited by birth. Their rights attach to it by their birth. The property
is called unobstructed because the accrual of the right to it is not obstructed by the existence
of theowner.12

9Thus, if A inherits property from his father or grandfather or great grandfather it is ancestral
property or unobstructed heritage in the hands of A as regards the male issue because the
existence of A an obstruction to his son acquiring an interest but as regards other relations he
hold it as his absolute property. If A has not male issue, other relation has no interest in the
property during the life-time of A.13

 Obstructed heritage (I.e. Apratibandhadara):

Property inherited by a Hindu from a person other than his father, grandfather or great
grandfather is obstructed heritage. It is called obstructed because the accrual of the rights to it
is obstructed by the existence of the owner.14

The owner holds it as his separate and absolute property. The relations of the owner do not
take vested interest in it by birth.They are entitled to it only on the death ofvthe owner.Thus
the property which devolves on parents, brothers, uncles, nephews, etc. on the death of the
last owner is obstructed heritage.15

12 'Useful Notes On Unobstructed Heritage And Obstructed Heritage' (World’sLargest

Collection of Essays! Published by Experts,2013)
<http://www.shareyouressays.com/114868/useful-notes-on-unobstructed-heritage-and-
obstructed-heritage> accessed 22 April 2016.

13 Ibid

14 Ibid

15 ibid
Obstructed heritage devolves by succession except in the following cases in which it passes
by survivorship.

1. Two or more sons, grandsons and great grandsons succeeding as heirs to the separate
property of their paternal ancestor take as joint tenants with rights orsurvivorship.

2. Two or more grandsons by a daughter who are living as members of a joint family
succeeding as heirs to their maternal grandfather take as joint tenants with rights of
survivorship.

3. Two or more widows succeeding as heirs to their husband take as joint tenants with
survivorshiprights.

4. Two or more daughters succeeding as heirs to their father take as joint, tenants. But in the
Bombay State, they take absolute estate inseveralty.

The Mitakshara Law recognizes the distinction between obstructed and unobstructed heritage,
but under Dayabhaga Law. Every kind of heritage is obstructed and it does not recognize any
such distinction because according to Bengal School no person at all acquires any interest by
birth in the property of another and the rule of survivorship does not apply to thisschool.16

(2) Joint or AncestralProperty:

The concept of a joint family or of coparcenary’s property (as is recognised

under Hindu law) is not known to Muslims. Whenever a Muslim dies, his properties devolve
on his heirs in definite share of which each heir becomes an absolute owner. Subsequently,
upon the death of such heir, his properties are again inherited by his legal heirs, and this
processcontinues.

Thus, unlike Hindu law, there is no provision for any ancestral or joint family property.
Accordingly, under Muslim law of inheritance, no distinction has been made between
selfacquired and ancestral property. All properties, whether acquired by a Muslim himself or
inherited by his ancestors, are regarded as an individual property and, may be inherited byhis

Hindu law recognizes the concept of joint family property. Coparcenary is “unity of title,
possessionandinterest”.HinduCoparcenaryisamuchnarrowerbodythanaHindujoint

16 Ibid
family it includes only those persons who acquire by birth an interest in the coparcenary
property, they being the sons, grandsons, and great-grandsons of the holders of the property
for the time being.17

Coparcenary: The Black’s law dictionary gives a more comprehensive explanation of the
term coparcenary. It says, “such estate arises where several take by descent from same
ancestor as one heir, all coparceners constituting but one heir and having but one estate and
being connected by unity of interest and of title. A species of estate, or tenancy, which exists
where lands of inheritance descend from the ancestor to two or more persons. It arose in
England either by common law or particular custom. By common law, as where a person,
seized in fee- simple or fee-tail, dies, and his next heirs are two or more females, his
daughters, sisters, aunts, cousins, or their representatives; in this case they all inherit, and
these coheirs, are then called “coparceners”, or, for brevity “parceners” only. By particular
custom, as where lands descend, as in gavelkind, to all the mates in equal degree, as sons,
brothers, uncles etc…An estate which several persons hold as one heir, whether male or
female. This estate has the three unities of time, title and possession; but the interests of the
coparceners may beunequal.”18

(3) NoBirthRight:

Inheritance opens only after the death of a Muslim. No person may be an heir of a living
person (Nemoest haeres viventis). Therefore, unless a person dies, his heirs have no interest
in his properties. Unlike Hindu law, the Muslim law of inheritance does not recognise the
concept of ‘right by birth’ (Janmaswatvavad). Under Muslim law, an heir does not possess
any right at all before the death of an ancestor. It is only the death of a Muslim which gives
the right of inheritance to his legal heirs. As a matter of fact, unless a person dies, his relatives
are not his legal heirs; they are simply his heirapparent and have merely a ‘chance of
succession,(spessuccessions).IfsuchanheirapparentsurvivesaMuslim,hebecomeshis

17 CA.R,SuccessionLaws<http://www.caaa.in/Image/Sucession%20Laws.pdf>accessed
22 April2016

18 Joseph R. Nolan et al., Black’s Law Dictionary, 6th ed. 1990, p.335
legal heir and the right of inheritance accrues to him. If the heirapparent does not survive a
Muslim, he cannot be regarded an heir and has no right to inherit the property.19

Under the Dayabhaga school, the father is regarded as the absolute owner of his property
whether it is self-acquired or inherited from his ancestors. Mitakshara law draws a distinction
between ancestral property (referred to as joint family property or coparcenary property) and
separate (e.g. property inherited from mother) and self-acquired properties. In the case of
ancestral properties, a son has a right to that property equal to that of his fat her by the very
fact of his birth. The term son includes paternal grandsons and paternal great-grandsons who
are referred to as coparceners. An important category of ancestral property is property
inherited from one's father, paternal grandfather and paternal great-grand father.20

(4) Doctrine of Representation:

Doctrine of representation is a well known principle recognised by the Roman, English and
Hindu laws of inheritance. Under the principle of representation, as is recognised by these
systems of laws, the son of a predeceased son represents his father for purposes of
inheritance. The doctrine of representation may be explained with the help of the
example given below. P has two sons A and B. A has got two sons and С, D and B has a son

E.21

During the life of P, his family members are his two sons (A and B), and three grandsons (C,
D and E). Unfortunately, B predeceases P, i.e. В dies before the death of P. Subsequently,

19 'General Principles Of Inheritance Under Muslim Law - Rules RelatingT…'

(Slideshare.net, 2016)<http://www.slideshare.net/hanifmulia/general20-
principles20of20inheritance20under20muslim20law> accessed 22 April 2016

20 Brick D, 'The Spirit Of Hindu Law. By Donald R. Davis, Jr.' (2010) 3 The Journal of Hindu
Studies

21 'What Are The ‘Doctrine Of Representation’ And ‘Stripital Succession’ Under

Muslim Law?' (World’s Largest Collection of Essays! Published by Experts,2013)
<http://www.shareyouressays.com/117593/what-are-the-doctrine-of-
representation-and-stripital-succession-under-muslim-law> accessed 22 April
2016
when P also dies, the sole surviving members of the family of P are A and three grandsons,C,
D and E.22

Under the doctrine of representation, E will represent his predeceased father and would be
entitled to inherit the properties of P in the same manner as B would have inherited had he
been alive at the time of P’s death.23

But, Muslim law does not recognise the doctrine of representation. Under Muslim law, the
nearer excludes the remoter. Accordingly, in the illustration given above, E will be totally
excluded from inheriting the properties of P. Both, under Shia as well as under Sunni law, E
has no right to inherit the properties of P. The result is that E cannot take the plea that he
represents his predeceased father (B) and should be substituted in his place.24

Under Muslim law, the nearer heir totally excludes a remoter heir from inheritance. That is to
say, if there are two heirs who claim inheritance from a common ancestor, the heir who is
nearer (in degree) to the deceased, would exclude the heir who is remoter. Thus, between A
and E, A will totally exclude E because A is nearer to P in degree whereas, E belongs to the
second degree of generation. The Muslim jurists justify the reason for denying the right of
representation on the ground that a person has not even an inchoate right to the property of
his ancestor until the death of that ancestor.25

Accordingly, they argue that there can be no claim through a deceased person in whom no
right could have been vested by any possibility. But, it may be submitted that nonrecognition
of principles of representation under the Muslim law of inheritance, seems to be unreasonable
and harsh. It is cruel that a son, whose father is dead, is unable to inherit the properties of his
grandfather together with his uncle.26

22 Ibid

23 Ibid

24 Ibid

25 ibid

26 ibid
The doctrine of representation is recognized in the Hindu law. Under Hindu law, the doctrine
of representation and the per stripes rules are recognized for succession as well as partition,
the doctrine of representation is utilized for two purposes: (i) for determining the heirs, and
(ii) for determining the quantum of share of an heir or a group of heirs.27

The per stripes rules means that where there are branches, the division of property takes place
according to the stock, i.e., at the places where branches bifurcate.

Thus, suppose P dies leaving behind a son S and a grandson SS, who is a son of a
predeceased son. By the application of the doctrine of representation, SS representing his
father, will be an heir and will take the same share which his father would have taken had he
beenalive.28

This means that S will take 1/2 and SS will 1/2. Take another example. A dies leaving behind
two grandsons, SS, SS1, from a predeceased son S, three grandsons, SS2, SS3and SS4from
apre-deceased son S’ and four grandsons, SS5, SS6, SS7and SS8from, a predeceased son S2,
and a on S3.29

By the application of the doctrine of representation all the grandsons will succeed along with
the son. S3by virtue of per stirpes rules, the share will be determined at the stocks, i.e., there
will be four shares, one for S, one for S1, one for S2and one for S3, each son taking one-

27 Supra note 20,pg71

28 Ibid

29 Ibid
fourth, S1S 1/4 will go to SS and SS1, and S2s 1/4 will go to SS2, SS3and SS4and S2’s 1/4 will
go to SS5, SS6, SS7, and SS8and S3will each take his, 1 /4.30

(5) PerCapita and PerStripDistribution:

Succession among the heirs of the same class but belonging to different branches may
either be percapita or perstrips. In a percapita distribution, the succession is
according to the ‘number of heirs’ (i.e. heads). Among them the estate is equally divided;
therefore, each heir gets equal quantity of property from the heritable assets of
the deceased. On the other hand, in a per strip distribution, the several heirs who belong to
different branches, get their share only from that property which is available to the branch to
which they belong. In other words, in the stripital succession, the quantum of property
available to each heir depends on the property available to his branch rather than the number
of all the heirs. 31

Under Sunni law, the distribution of the assets is percapita. That is to say an heir does not in
any respect represent the branch from which he inherits. The percapita distribution may be
illustrated by the following diagram.32

M has got two sons A and B. A has three sons, S1, S2 and S3. B has two sons S4 and S5.
When M dies there are two branches of succession, one of A and the other of B. Suppose, A
and B both die before the death of M so that the sole surviving heirs of M are his five
grandsons. Now, under the percapita scheme of distribution (as recognised under Sunni law)
the total number of claimants (heirs) is five and the heritable property would
be equally divided among all of them irrespective of the branch to which an heir
belongs. Therefore, each of them would get 1/5 of the total assets of M. It may be noted
that under Sunni law the principle of representation is recognised neither in the
matter of determining the claim of an heir, nor in determining the quantum of share of each
heir.33

30 Ibid

31 Supra note21

32 Ibid

33 Ibid
Shia Law

Under the Shia law, if there are several heirs of the same class but they descend from
different branches, the distribution among them is per strip. That is to say, the quantum of
property inherited by each of them depends upon the property available to that particular
branch to which they belong. In the abovementioned illustration, A and constitute В two
branches, each having 1/2 of M’s property. Both, A and B predeceaseM.34

But, the quantum of property available to each of their branch would remain the same.
Therefore, the surviving heirs of A namely, S1, S2, S3 would get equal shares out of
1/2 which is quantum of property available to the branch of A. Thus S1, S2 and S3
would get 1/6 each. Similarly, the quantum of property available to the branch of B is also1/2
but the descendants from this branch are only two. Accordingly, the 1/2 property of B would
be equally shared by S4 and S5. Therefore, 54 and S5 would get 1/4 each. It is significant to
note that for a limited purpose of calculating the share of each heir, the Shia law accepts the
principle of representation. Moreover, under the Shia law this rule is applicable for
determining the quantum of share also of the descendants of a predeceased daughter, pre-
deceased brother, predeceased sister or that of a predeceasedaunt.

The property is divided per stripes in Hindu law as already discussed under sub-heading 5.

(6) Female’s Right ofInheritance:

Males and females have equal rights of inheritance. Upon the death of a Muslim, if his heirs
include also the females then, male and female heirs inherit the properties simultaneously.
Males have no preferential right of inheritance over the females, but normally the share of a
male is double the share of a female. In other words, although there is no difference
between male and female heir in so far as their respective rights of inheritance
is concerned but generally the quantum of property inherited by a female heir is half of the
property given to a male of equal status (degree). The principle that normally the share of a
male is double the share of a female has some justification. Under Muslim law, while a
female heir gets (or hopes to get in future) an additional money or property as her Mehr and
maintenance from her husband, her male counterpart gets none of the two benefits.Moreover,

34 Ibid
the male heir is primarily liable for the maintenance of his children whereas, the female heir
may have this liability only in an extraordinary case.36

A Hindu woman or girl will have equal property rights along with other male relatives forany
partition made in intestate succession after September 2005, the Supreme Court hasruled.37

A bench of justices R. M. Lodha and Jagdish Singh Khehar in a judgment said that under the
Hindu Succession (Amendment) Act, 2005, the daughters are entitled to equal inheritance
rights along with other male siblings, which was not available to them prior to the
amendment.38

The apex court said the female inheritors would not only have the succession rights but also
the same liabilities fastened on the property along with the male members.

“The new Section 6 provides for parity of rights in the coparcenary property among male and
female members of a joint Hindu family on and from September 9, 2005. The legislature has
now conferred substantive right in favour of the daughters.

“According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth
in her own rights and liabilities in the same manner as the son. The declaration in Section 6
that the daughter of the coparcener shall have same rights and liabilities in the coparcenary
property as she would have been a son is unambiguous and unequivocal,”Justice Lodha,
writing the judgment, said.39

The term coparcener refers to the equal inheritance right of a person in a property. The apex
court passed the ruling while upholding the appeal filed by Ganduri Koteshwaramma,

35 Schaebler B, 'Introduction' (2013) 103 The MuslimWorld

36 'Inheritance And Succession, Rights Of Women And Daughters UnderPersonal

Laws | Lexorates - Law Speaking People' (Lexorates.com,2016)
<http://www.lexorates.com/articles/inheritance-and-succession-rights-of-women-
and-daughters-under-personal-laws/> accessed 22 April 2016

37 Ibid

38 Ibid
daughter of late Chakiri Venkata Swamy, challenging the Andhra Pradesh High Court’s
decision not to recognise equal property rights of women along with their male siblings.40

(7) A Child in theWomb:

A child in the womb of its mother is competent to inherit provided it is born alive. A child in
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.41

Section 20 of the Hindu Succession Act lays down the right of child in the mother’s womb at
the time of the death of intestate. According to this section a child who was in the womb at
the time of the death of an intestate and who is subsequently born alive shall have the same
right to inherit to the intestate’s property as if he or she had been born before the death of
intestate , and the inheritance shall be deemed to vest in such a case with effect from the date
of death of the intestate. This section has simply codified the position of old Hindu law what
recognized posthumous child as an heir. Under this section two elements must remain
present42

i) the child must be in the womb at the time of the death of intestate ,and

ii) the child must born alive.

(8) Primogeniture:

Primogeniture is a principle of inheritance under which the eldest son of the deceased enjoys
certain special privileges. Muslim law does not recognise the rule of primogeniture and all
sons are treated equally. However, under the Shia law, the eldest son has an exclusive right to
inherit his father’s garments, sword, ring and the copy of Quran, provided that
such eldest son is of sound mind and the father has left certain other properties besides these
articles.43Hindulawalsodoesnotrecognizetheprincipleofprimogeniture.Howeverthis
39 Ibid

40 Supra note21

41 Hindu Succession Act 2005, sec20

42 Supra note21
rule did have a minimilastic application in earlier times, where the elder son possessed
extraordinary physical, mental or moral prowess he was entitled to the most valuable
chattel.44

(9) StepChildren:

The stepchildren are not entitled to inherit the properties of their stepparents. Similarly, the
stepparents too do not inherit from stepchildren. For example, where a Muslim H marries a
widow W having a son from her previous husband, the son is a stepson of H, who is
stepfather of this son. The stepfather and stepson (or daughter) cannot inherit each other’s
properties. That stepchild is competent to inherit from its natural father or natural mother.
Similarly, the natural father and natural mother can inherit from their natural sons or
daughters. However, the stepbrothers (or sisters) can inherit each other’s properties. Thus, in
the illustration given above, if a son (or daughter) is born out of the marriage of H and W, the
newly born child would be a stepbrother (or sister) of the son from wife’s previous husband.
These sons or daughters are competent to inherit each other’s property. The stepbrothers or
sisters may either be, uterine or consanguine. Muslim law provides for mutual rights
of inheritance between uterine and consanguine brothers or sisters.45In Hindu law the
illegitimate children can inherit only the separate property of their parents and cannot inherit
any ancestralproperty.46

43 Agrawal K, Family Law In India (Kluwer Law

International2010)45 Supra note21

46 Brick D, 'The Spirit Of Hindu Law. By Donald R. Davis, Jr.' (2010) 3 The Journal of Hindu
Studies
 CONCLUSION

Both Hinduism and Islam lays stress on distribution of property and have made provisions to
distribute it among heirs. Some of the biggest and fundamental differences that we got to
notice in here was between the right to property and also in the doctrine of representation.
These two could be considered fundamental in the sense that both of these rights rights
completely cut off the right to property in one way or the other for the heirs. While in Hindu
law a child born has an absolute right in the property in mitakshara school of Hindu law,
while in islam the right to property does not open up at the birth of someone itself. In Muslim
law a person has the right to decide the fate of his property fully if we are to look carefully we
will see a stark similarity between Muslim law of inheritance and the dyabhaga school of
inheritance in Hindu law.

The Dayabhaga School neither accords a right by birth nor by survivorship though a joint
family and joint property is recognized. It lays down only one mode of succession and the
same rules of inheritance apply whether the family is divided or undivided and whether the
property is ancestral or self-acquired. Neither sons nor daughters become coparceners at birth
nor do they have rights in the family property during their father’s lifetime. However, on his
death, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that
the daughters also get equal shares along with their brothers. Since this ownership arises only
on the extinction of the father's ownership none of them can compel the father to partition the
property in his lifetime and the latter is free to give or sell the property without their consent.
Therefore, under the Dayabhaga law, succession rather than survivorship is the rule. If one of
the male heirs dies, his heirs, including females such as his wife and daughter would become
members of the joint property, not in their own right, but representing him. Since females
could be coparceners, they could also act as kartas, and manage the property on behalf of the
other members in the Dayabhaga School47As we can see that Dyabhaga school is quite
similar to the Muslim law of inheritance. It is only after the death of the person that the right
to property may come into existence up until then the heirs have only a right to spes-
successions to the property which means that they only have a chance to inherit the property.
The other main difference between the two systems of laws is that of the doctrine of
representation. The Muslim law does not recognize the doctrine of representation while the
Hindu law does. The doctrine of representation has been discussed above in the project. The
main thing that comes to mind is the injustice that is happening to the remoter heir in the
Muslim law. This law is problematic in every sense, but now various Islamic countries have
realised the problem with this law and are trying to correct this problem for example The
Muslim Family Laws Ordinance, 1961 (Sec. 4) of the then Pakistan, predominantly a Sunni
state, rectified the traditional law by the doctrine of representation, which was also
incorporated in Bangladesh after liberation war. Also Egypt, Syria, Morocco and Tunisia
have adopted this principle. 48
The next main difference that was included the position of women. In this regard the Muslim
law traditionally did recognize women’s right to property. The Hindu traditional law did not
recognize any such law and also did not gave women any right to property but only
recognized their right to be maintained but after the amendment act of 2005 the woman can
now be coparceners and have been given rights the same as that of a male. The Hindu law can
be seen to be more bent towards evolution and is making itself compatible with the modern
times. The Muslim law on the other hand is slow in this process of evolution mainly because
the traditional law is able to address much of the issues and only some provisions are unjust
but attempts are being made to address these issues too.

47 http://www.lawteacher.net/free-law-essays/equity-law/the-law-of-inheritance-
in-bengal-equity-law-essay.php#ixzz46p6dp0tlaccessed at 23 April, 2016

48 http://www.observerbd.com/2015/09/03/108490.php#sthash.QBf4L0bD.dpuf
accessed at 23 April, 2016
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