General Principles of Muslim Law of Succession

The Muslim Law of Succession is a combination of four sources i.e. the Holy
Quran, Sunna (practice of prophet), Ijma, (Consensus of the learned men of the
community over the decision over a particular subject matter), Qiyas (deductions
based on analogy on what is right and just in accordance with good principles).
Muslim law recognises two types of heirs, firstly, sharers, the ones who are
entitled to certain share in the deceased’s property and secondly, Residuaries, the
ones who would take up the share in the property that is left over after the sharers
have taken their part.

Under the Indian legislative scheme, the rules that govern inheritance under the
Muslim law depend on the kind of property involved. In cases of Non
testamentary succcession, 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 which is situated
in the state of West Bengal or comes within the jurisdiction of Madras or Bombay
High Court, the Muslims shall be bound by the Indian Succession Act, 1925. This
exception is only for the purposes of testamentary succession.

It is noteworthy that the Muslim law does not make any strict distinction between
any two or more type of properties such as movable and immovable, corporeal
and incorporeal etc. Since there is no such distinction between different kinds of
properties, therefore, on the event of death of a person, every such property which
was within the ambit of ownership of the deceased person shall become a subject
matter of inheritance. The amount of property that shall become the subject matter
of inheritance and is made available to the legal heirs to inherit shall be
determined after making certain appropriations. Such appropriations may include
expenses paid in lieu of funeral, debts, legacies, wills etc. After making all these
payments, the leftover property shall be termed as the inheritable property.

Principles governing rules of inheritance of joint or ancestral property

Unlike Hindu law, there is no provision of distinction between individual i.e. self
acquired or ancestral property. Each and every property that remains within the
ownership of an individual 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. Subsequently, on
the death of every such legal heir, his inherited property plus the property
acquired by him during his lifetime shall be transferred to his heirs.

Nature of the Heritable Property

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 subject-
matter of inheritance.

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.
Birth right

The principle of Hindu law of inheritance of Janmaswatvad does not find place
in the Muslim law of inheritance. The question of 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. In fact no such person holds
becomes a legal heir and therefore holds no right till the time of death of the
ancestor. If an heir lives even after the death of the ancestor, he becomes a legal
heir and is therefore entitled to a share in property. However, if the apparent heir
does not survive his ancestor, then no such right of inheritance or share in the
property shall exist.

Inheritance on the basis of Doctrine of Representation

Doctrine of representation states that if during the lifetime of an ancestor, any of

his or her legal heirs die, but the latter’s heirs still survive, then such heirs shall
become entitled to a share in the property as now they shall be representing their
immediate generation. Doctrine of Representation finds its recognition in the
Roman, English and Hindu laws of inheritance. However, this doctrine of
representation does not find its place in the Muslim law of inheritance. For
example, A has two sons B and C. B has 2 children i.e. D and E and C also has
two children F and G. During the life time of A if B dies, then on the event of
death of A only C shall be entitled to inherit A’s property. B’s children D and E
shall not be entitled to any share in A’s property. Between C and B’s children D
and E, C would totally exclude D and E from inheriting the property. Therefore,
it is said that the nearer heir excludes the remote heir from inheritance. 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. It is further argued that a right which was not
vested in any possibility cannot give rise to claim through a deceased person.

Manner of Distribution

Under the Muslim law, distribution of property can be made in two ways, firstly
per capita or per strip distribution. 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 heir does not represent the branch
from which he inherits.

On the other hand, 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. For example, if A has two sons i.e. B and C. B has two children i.e.
D and E. C has three children F, G and H. Suppose on the death of A his property’s
worth is estimated to be about 12000. B and C would be entitled to an equal share
of 6000 each. . In case if B and C both die, then the extent of their children’s share
shall be in following manner. B’s children D and E can only inherit the property
to the extent of B’s share. Their share shall be 3000 each. As far as the children
of C are concerned the extent of property that they can inherit shall extend to
6000. Their respective shares shall be equal i.e. 2000 each. Hence, it can be said
that the share of each person in this method of distribution varies.

It is noteworthy that the Shia law recognises the principle of representation for a
limited purpose of calculating the extent of share of each person. Moreover, under
the Shia law this rule is applicable for determining the quantum of share of the
descendants of a pre-deceased daughter, pre-deceased brother, pre-deceased
sister or that of a pre-deceased aunt.
Right of Females in inheritance of property

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 of inheritable property. Preferential rights do not exist.
However, it is generally found that the quantum of share of female heir is half of
that of the male heirs. The justification available to this distinction under Muslim
law is that the 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.

Rights of inheritance of a child in womb

Under Muslim Law, a child in the womb shall only be entitled to the share in
property if he or she is born alive. In case if he is born dead then the share vested
in him shall cease to exist and it shall be presumed that it never existed.

Rights of a childless widow and widow

Under the Shia law, a Muslim widow who does not have any children shall be
entitled to inherit one – fourth share of the movable property belonging to her
deceased husband. However, a widow with children or childless widow 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
dies without consummating the marriage, the widow shall not be entitled to any
right over her dead husband’s property.

Rights of the step children

The rights of the step children do not extend to inherit the property of their step –
parents. However, the step brother can inherit property from their step sister or
brother.

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.

Simultaneous Death of two Heirs

When two or more persons die in such a circumstance that it is not ascertainable
as to who died first (i.e. who survived whom) then, both of them cease to be an
heir for each other. In other words, where two or more heirs die simultaneously
and, it is not possible to establish as to who died first then under Muslim law, all
the heirs are presumed to have died just at one moment. The result is that such
heirs are regarded as if they did not exist at all; the inheritance opens omitting
these heirs.

For example, A and В are each other’s legal heirs in such a manner that after the
death of any one of them, the surviving person would inherit the property of the
deceased one. But, both A and В die simultaneously say, in an aero plane crash,
and it could not be established as to who survived whom. Under Muslim law,
neither A would inherit В nor В would inherit A.

Thus, the legal heirs of A would inherit A’s property as if there was no В at all.
Similarly, the heirs of В would inherit B’s property as if A did not exist at all?

Missing Persons

According to the texts of Hanafi law, a missing person was supposed to have been
dead only after ninety years from the date of his birth; till then the inheritance of
his properties did not open. But, now this rule has been superseded by Sec. 108
of the Indian Evidence Act, 1872 which provides as under:

“When the question is whether a man is alive or dead, and it is proved that he has
not been heard of for seven years by those who would naturally have heard of
him if he had been alive, the burden of proving that he is alive is shifted to the
person who affirms it”.

Accordingly, where a Muslim is missing for at least seven years and if it could
not be proved that he (or she) was alive then, that person is legally presumed to
be dead and the inheritance of his (or her) properties opens.

It has been held by the courts that Hanafi rule of ninety years of life of a missing
person was only a rule of evidence and not any rule of succession; therefore, this
Hanafi rule must be taken as superseded by the provisions of Indian Evidence Act
1872.

Escheat

In cases where a person dies without any heir then, the property of such a person
shall go to the government. The state is considered as the ultimate heir of every
deceased.