This article has been written by Vaishali.N from the School of Excellence in Law, Chennai. This article provides an overview of the Muslim law of inheritance and discusses the concept of inheritance under Muslim personal laws, the class of heirs, and the procedure followed in obtaining inheritance under Muslim laws.

it has been published by Rachit Garg.

Introduction  

Inheritance refers to the transfer of property from a deceased person to a living person who is legally related to him or her. The process of devolution of inheritance for Muslims is governed by various Muslim personal laws, which are based on pre-Islamic customary succession laws and principal scriptural sources like the Holy Quran, the Sunnah, the Ijma, and the Qiyas.

As one might know, there are two kinds of succession – testamentary (where a will was created before the death of the deceased person) and non-testamentary (where the person dies intestate, i.e., without creating a will). Under Muslim laws, non-testamentary succession is governed by the Muslim Personal Law (Shariat) Application Act, 1973, while testamentary succession is governed by separate Shariat laws for the Shia and Sunni sect of Muslims. The Muslim laws of inheritance also have a unique system of classifying the heirs into ‘sharers’ and ‘residuary’, derived from the Quran and Hadith.

Concept of inheritance under Muslim law 

The concept of inheritance is rooted in the Islamic or Quranic principles enumerated by the Prophet. Islamic laws do not recognise joint tenancy, and the heirs are tenants-in-common, i.e., they can only seek to inherit the shares of the property that is held in common. In the case of Abdul Raheem v. Land Acquisition Officer (1989), the court remarked that Muslims do not follow or recognise the joint family system in matters of inheritance, and after the death of a Muslim person, the rights, title, and interest he held in his estate cease to exist and stand vested in others.  

However, inheritance is not guaranteed to every child that is born into the family, i.e inheritance is not at all a birth-right under Muslim law.  An heir- apparent must survive the deceased to claim an inheritance. A child in the womb of its mother is also competent to inherit, provided it is born alive. If the child is stillborn, it will be treated as though it never existed, and thus the interest in the share of property that was vested in the child is stripped off. 

Under Islamic laws, male and female heirs alike have the right to inherit property. Near female heirs or cognates are recognised in the class of heirs.  However, the females get only half of the quantum shares allotted to their male counterparts, since under the Islamic system, females will go on to receive more wealth through mehr and the maintenance provided by their husbands, while males only have inheritance, which contributes to their duty of maintaining their wife and children.

Nevertheless, in a marital setting, the husband and wife are equally entitled to inheritance from their spouse. A widow is also included in the scheme of inheritance. A widow who has children or grandchildren is given 1/8 of the property of her deceased husband, and if she is childless, she gets 1/4 of his property. However, if a woman marries a Muslim man during his illness, which subsequently became the reason for his death, and the marriage has not been consummated for that reason, then as a widow, she would  not have the right to inheritance. But if her husband divorced her before dying of illness, then her right to inheritance continues until she remarries. 

The Islamic laws also give priority to the  ascendants of the deceased over the descendants in the scheme of inheritance by making them the immediate heirs or the first-in-line to inheritance.  

The Islamic scheme of inheritance comprises two kinds of heirs – the Sharers, or Quranic heirs, and the customary heirs, called the residuaries. 

The Quran amended the customary tribal laws of succession to align them with Islamic philosophy. The major amendment to customary law is the introduction of the class of ‘sharers’ or ‘Quranic heirs’ which led to the inclusion of heirs who were previously excluded under the customary succession laws. Therefore, if ‘M’ a Muslim man, dies leaving behind his widow ‘W’ and his sons S1 and S2, then W, being the sharer, will take 1/8 (one-eighth)  of the property and the remaining 7/8 (seven-eighths) will be allocated to the residuaries – S1 and S2.

However, there is divergence in the application of Quranic principles between the divided sects of Sunni and Shia Muslims, creating slightly different rules of inheritance – the Sunni law of inheritance and the Shia law of inheritance. 

Sunni Law of inheritance 

The Sunni in India primarily belong to the Hanafi school and are governed by Hanafi school of law. The Hanafi laws attempt to create a more harmonious relationship between the customary law and the Quranic law by which the inclusion of the Quranic class of heirs does not deprive the customary heirs of their share but rather just a portion of the estate is allotted to the Quranic heirs. It is important to note that, even though the new class of heirs created included females, it still retained the preference of agnates over cognate heirs. That is, the Quranic class recognizes the female agnates’ right to inherit a share much like their male counterparts. 

The position of the Quranic heirs and the customary heirs with respect to inheritance differs in two cases:

• If the Quranic heir is more in proximity to the deceased than to a customary heir, the Quranic heir gets a portion of estate first and then the residuary is given to the customary heir.
• If both the Quranic and customary heirs are equally close, the customary heir gets double of the amount of share given to the Quranic heir.

Even though the agnates are given preference in inheritance over cognates, they’re not completely excluded from the scope of succession, as cognates such as uterine brothers and uterine sisters are included. 

Under the Hanafi law, the heirs of the deceased are either sharers or residuaries, and in the absence of both of these classes of heirs, the estate is passed down to other relatives of the deceased, who fall under the category of “distant kindred”. In case of absence or some inability that restricts the distant kindred from inheriting, the estate is passed on to the state by escheat, meaning that if a Muslim dies heirless, then the property is devolved on to the state.

Further, the distribution of estates under the Sunni law is per capita, according to which the estate of the deceased is distributed equally among the heirs. Thus, the number of shares one gets is proportional to the number of heirs. 

Shia Law of inheritance 

The Shia law of inheritance is guided by the general principles of the Ithna-Ashari law. The Quranic rules here are interpreted very widely, unlike the strict interpretation followed by the Sunni law. This causes a very significant divergence in the principles and rules of succession under Shia laws, leaving them with an almost independent scheme of succession. 

Shia law follows per strip distribution, i.e., the distribution of property among the heirs is based on the strip they belong to. 

The Shia law does not prioritise the rights of agnates over cognates or of males over females with respect to inheritance. But there is a certain exception to the rights of husband and wife – the estate of the deceased devolves to the blood relations equally, and the females are allowed only half of the share of the males in each class. Therefore, there is no hierarchy with respect to who inherits the estate first between the descendants, ascendents, and collaterals, as they all inherit side by side. 

Thus, the shias right to inheritance is based upon two categories of relations:

1. Nasab – blood relationships or consanguinity;
2. Sabab – special cause or heirs by affinity, through marriage. 

In testamentary succession, if the property in question is an immovable property located in Chennai, West Bengal, or Bombay, then it becomes an exception, where the Muslims will be bound by the Indian Succession Act, 1925, rather than Shariat laws.

The rule of spes successionis in Muslim Law 

The doctrine of spes successionis is an important rule relating to the transfer of property. Spes successionis is a Latin maxim that translates to ‘expectation of succession’. It means a person who is the apparent heir of another person is expected to succeed to his estate after the death of that person. The rule states that just because a person is expected to inherit a property after the death of another person, it does not mean that it amounts to him having an interest in that property. Thus, mere ‘expectation’ or ‘chance’ to succeed to a property does not provide him with any legal right over the property. The transferability of a Spes Successionis is prohibited in Indian law under the provision of Section 6(a) of the Transfer of Property Act, 1882.

However, the rule of spes successionis is not recognized in the Muslim law of inheritance.

Thus, the transfer of spes successionis is considered the renunciation of the chance of succession. The chance of a Muslim heir – apparent succeeding an estate cannot be the subject of a valid transfer or release.

In the case of Shehammal v. Hasan Khani Rawther and Ors.(2011), it was ruled that the doctrine of spes successionis need not be considered in a family arrangement. In this case, the respondent was one of the heirs-apparent to inherit a share of the plaintiff’s property. But even before inheriting his share, the respondent executed a deed with his father to relinquish his rights over the property in exchange for some consideration. The Apex Court was to decide whether a Mohammedan can relinquish his right to inherit by way of a family arrangement even before acquiring the property. It was ruled that the doctrine of spes successionis can be avoided in family arrangements or in cases of relinquishment of inheritance rights over consideration.

Class of heirs under Muslim law 

Both the Shia and Sunni schemes of inheritance consist of sharers and residuary classes of heirs. However, there are differences in the arrangement, hierarchy, and distribution of shares between the two. 

 Class of heirs under Hanafi law 

  The heirs of a deceased Muslim fall under the following classes – 

1. Sharers 
2. Residuaries 
3. Distant kindred relations

Class – I heirs 

The sharers fall under class I heirs, and there are 12 relatives of the deceased on the  list of sharers. 

1.  Wife (Widow) – takes 1/8 (one-eighth) part of share if she has children and ¼ in case of her being childless. She can never be excluded.
2. Husband (widower) – gets 1/8 (one-eighth) shares, but in case he is childless, the share portion increases to 1/2 (one-half). He can never be excluded.
3. Daughter –  a single daughter gets 1/2 (one-half) shares. If there are two or more then they take 2/3 (two-thirds) of shares together. In the presence of a son, she becomes a residuary. She can never be excluded.
4. Son’s daughter – gets 1/2 (one-half) shares and if two are more then, 2/3 (two-thirds) shares. Share is reduced to 1/4 (one-fourth) when there is only one daughter and to 1/8 (one-eight) in presence of one higher son’s daughter. In the equal presence of a son’s son, she becomes a residuary. Can be excluded under certain conditions.
5. Full sister – a full sister gets 1/2 (one-half) shares and in case there are two or more in number they together take 2/3 (two-thirds) shares. In the presence of a full brother, she becomes a residuary. Can be excluded under certain conditions.
6. Consanguine sister – gets 1/2 (one-half) shares and 2/3 (two-thirds) together if there are two or more. In presence of a full brother, share gets reduced to 1/6 (one-sixth) and in presence of a consanguine brother, she becomes a residuary. Can be excluded under certain conditions.
7. Uterine sister – gets 1/6 (one-sixth) shares if single and 1/3 (one-third) together if two are more in number. Can be excluded under certain conditions.
8. Uterine brother – gets 1/6 (one-sixth) shares if single and 1/3 (one-third) together if two are more in number. Can be excluded under certain conditions.
9. Mother – gets 1/6 (one-sixth) shares and never excluded. Share increases to 1/3 (one-third)  if there is no child or no son’s child or if she has a sibling. If the husband or wife of the deceased exists, then she gets 1/3 (one-third) of shares after deducting the shares of the husband or wife.
10.  Father – gets 1/6 (one-sixth) shares and is never excluded. When there is no child or son’s child then he becomes a residuary. 
11. True grandmother – gets 1/6 (one-sixth) shares. Under Certain exceptions she can be excluded.
12. True grandfather – gets 1/6 (one-sixth) shares. Under certain exceptions he is excluded. If there is no child or son’s child, he becomes a residuary.

Class – II heirs 

The Quranic residuaries and the general residuaries constitute the class – II heirs. Quranic residuaries are those members who were originally sharers who become residuaries due to certain conditions or presence of a higher degree heir. 

 There are 5 Q uranic residuaries – 

1. Daughter – becomes a koranic residuary due to the existence of a son of the deceased.
2. Son’s daughter – becomes a residuary due to the presence of a son’s son or a male agnatic heir in a lower degree
3. Son’s son’s daughter – becomes a residuary due to the presence of a son’s son’s son or a male agnatic heir in lower degree.
4. Full sister – becomes a residuary due to the presence of a full brother 
5. Consanguine sister – becomes a residuary due to the presence of a consanguine brother

The residuaries can be classified into three categories – 

• the ascendants – the parents, grandparents the other relation who precede or ascent directly to the deceased.  
• the descendants – individuals succeeding in the direct biological line of the deceased, like children, grandchildren, and so on.
•  the collaterals – individuals who are descendants in parallel lineage of the ancestors of the deceased but are not direct blood relatives. Eg., consanguine brothers, sisters, paternal aunts and uncles. Maternal aunt and uncles etc. 

The collaterals can be further divided into the descendants of father and the descendants of grandfather.

• Descendants 

1. Son 
2. Son’s son howsoever low

• Ascendants 

3. Father 
4. True grandfather 

• Collaterals – descendants of the father 

5. Full brother 
6. Full sister 
7. Consanguine brother
8. Consanguine sister 
9. Full brother’s son 
10. Consanguine brother’s son 
11. Full brother’s son’s son 
12. Consanguine brother’s son’s son 

• Collaterals – descendants of the true grandfather 

13. Full paternal uncle 
14. Consanguine paternal uncle
15. Full paternal uncle’s son 
16. Consanguine paternal uncle’s son 
17. Full paternal uncle’s son 
18. Consanguine paternal uncle’s son’s son 

Class – III heirs 

In the absence of both sharers and residuaries,  the estate of the deceased is devolved to the distant kindred. All those blood relations that did not make it to the list of sharers and residuaries are constituted in this class, which includes female agents and the male and female cognates. 

The distant kindred can be categorised under descendants, ascendants, and collaterals. The number of collaterals, ascendants, and descendants is limitless, and relations of all degrees are included. 

• Descendants 

1. Daughter’s children and their descendants however low 
2. Son’s daughter’s children and all the succeeding descendants however low

• Ascendants 

1. False grandfather how so ever high 
2. False grandmother how so ever high 

• Collaterals  – descendants of parents 

1. Full brother’s daughters and their descendants 
2. Consanguine brother’s daughter and her descendants 
3. Uterine brother’s children and their descendants 
4. Full brother’s sons’ daughters and their descendants 
5. daughters of consanguine brother’s sons and their descendants 
6. Children of sisters (full, consanguine or uterine)

• Collaterals – descendants of immediate grandparents ( false or true) 

1. Full paternal uncle’s daughters and their descendant s
2. Consanguine paternal uncle’s daughters and their descendants 
3. Uterine paternal uncles and their children and their descendants 
4. Daughters of pull paterna; uncle’s sons and their descendants 
5. Daughter of consanguine paternal uncle ‘s sons and their descendants 
6. Paternal aunt’s (full, consanguine or uterine) and her children and their descendants 
7. Maternal uncles and aunts and their children and descendants 

• Descendants of remote grandparents (true or false) how so ever high. 

In the absence of heirs in all three classes, the estate passes onto the state by way of escheat.

Class of heirs under Shia Law 

The Shia Muslim heirs fall under two classes –

1. Heirs by marriage – the husband and wife 
2. Heirs by consanguinity 

Under the Shia scheme of heirs, the husband and wife are never excluded, and thus they always inherit with all other classes of heirs. The class of distant kindred is not recognised under Shia law.

Class – I heirs 

Under Shia Law, all Sharers are not Class – I heirs.

1. Husband 
2. Wife 
3. Father 
4. Mother
5. Daughter 
6. Son 
7. Grandchildren 
8. Remote lineal descendants 

Class – II heirs 

Class – II constitutes heirs by consanguinity, with three sub – categories, say, a, b and c, with priority of heirs decreasing from a to b. 

1. 1. Parents

2.   Children and succeeding descendants 

2. 3. Grandparents (both true and false ) 

4. Brothers, sisters and their descendants 

3. 5. Paternal uncles and aunts of the deceased, the parents and grandparents and  their descendants of all degrees

6. Maternal uncles and aunts of the deceased, their parents and grandparents and their descendants of all degrees

If a Muslim dies without leaving any heirs to inherit his or her property, it passes to the state by escheat. 

Doctrine of Radd and Aul 

The shares are distributed to the heirs in fractions. When situations arise where these fractions do not add up to unity, that is, where the fractions are more or less than unity, the doctrines of return (Radd) and increase (Aul) are applied. By applying these doctrines, shares among the heirs can be increased or decreased. 

It is important to note that both of these doctrines are recognized in the Sunni laws, however, the Shias do not recognize the doctrine of Aul.

Doctrine of Radd 

After the shares are distributed to the sharers and there is a residuary share left but there residuaries to take it, the residuary shares are re-distributed among the shares in proportion to their shares. The residue property is not transferred to the distant kindred in the absence of a residuary heir. The right of the sharers to get the residue shares in the absence of residues is called the Doctrine of Radd or return.

For example, a mother and a daughter, both being sharers, get 1/6 (one-sixth) and 1/2 (one-half) property respectively. Adding these shares together, we end with 2/3 (two-thirds) fraction which is less than unity (1). Thus, the remaining 1/3 (one-third) share is the residue. If there are no residuary heirs, this share, by the application of the doctrine of Radd, will be distributed among the shares again.

Doctrine of Aul 

If the total of the shares allotted to the sharers is more than unity (1), then the excess amount is deducted from the daughter or daughters or from the consanguineous or full sister or sister. 

For example, if a Muslim woman dies, leaving her husband, father and 2 daughters, then each will get a share of 1/4 (one-fourth), 1/6 (one-sixth) and 2/3 (two-thirds)  respectively and this adds up to 13/12 (thirteen-by-twelve) which is more than unity. By the application of the Doctrine of Aul, firstly the denominators are made common and are increased to the total sum of sharers. Hence 12/13 (twelve-by-thirteen) becomes 13/13. Then, new fractions of shares are allotted to the sharers, whereby the husband, father, and the two daughters get 3/13 (three-by-thirteen), 2/13 (two-by-thirteen) and 8/13 (eight-by-thirteen) respectively. 

Procedure of inheritance under Muslim law 

The Muslim laws only laid down a process for distribution of the estate after a person’s death and did not contain any procedure regarding administering an estate to the heirs. Thus, the administration of the estate of a deceased person is governed by the Indian Succession Act, 1925.

The procedure of inheritance under Muslim law is carried out as follows- 

1. An executor or administrator of a deceased Muslim is appointed as his legal representative. The executor cannot be a non-muslim.
2. The executor collects the assets, discharged debts and dues, pays legacies and distributes the remaining assets among the heirs. 
3. For the purpose of realisation of debts, a probate has to be obtained where the deceased had died testate (with a will). In case if the deceased had died intestate (without a will), then a letter of administration is obtained and produced before the court of law.
4. The payment of funeral expenses and debts of the deceased are fulfilled by the executor and he begins to act as an active trustee for the bequeathable one-third shares and bare trustee to the heirs for the remaining two- third shares.
5. The probate or the letters of administration with the will (oral or written) is annexed and produced before the court. After they are granted, the claim of the executor to represent the estate for all purposes is established. 
6. If the executor fails to obtain the probate, then the court appoints another person as the administrator with the copy of the will annexed. If the letter of administration may be granted to the heir, legatee or a creditor if the deceased. 
7. Any person who has an interest in the property or estate of the deceased may file a suit for administration of the estate, to ascertain debts and liabilities, to allocate debts to relatives to whom different rules of descent apply, and for declaration and delivery of interest. 

The appointment of an executor or administrator is essential to the process. But if a Muslim dies without appointing an executor, then the property of the deceased vests in the heirs. The heirs act as the legal representatives of the deceased. But in this case, it is necessary to obtain a certificate under the administrator general’s act or a succession certificate under the Indian succession act, 1925. Without these certificates, it will not be possible to take legal action against the debtors of the deceased.

Difference between inheritance and succession

Even though succession and inheritance are interlinked by meaning, the Indian laws recognise them as two separate legal concepts while dealing with transfer of property.  Succession is the process by which an estate, its rights and liabilities are transferred from one person to another. Succession is the determination of who is entitled to inherit the estate of the deceased. While, inheritance is the process of transferring the ownership and interest in property of the deceased to his or her legal heir.

With respect to Muslim personal laws, succession involves transfer of rights, responsibilities, and obligation onto the legal heir upon the death of the person. It encompasses inheritance, distribution of property, transfer of assets, guardianship and other roles. Inheritance, under the islamic laws, refers to the distribution of property among different classes of heirs in accordance with the specific shares and portions allocated for each category.  

Judicial pronouncements 

Abdul Majid Khan Sahib v. Krishnamachariar (1916) 

In this case, the court addressed the question of whether the sale of property by a co-heir who is in possession of the whole or part of the estate of the deceased, for the purpose of discharging the debts of the deceased, is binding on the other co-heirs or creditors of the deceased. The court observes that after the death of the deceased, one portion of the estate goes toward fulfilling the funeral expenses and the debts of the deceased, and the remaining portion is distributed to the heirs. Citing precedents, the court remarked that one co-heir does not have the right or authority to deal with the shares of the other co-heirs in the Muslim legal system. Thus, one co-heir cannot perform any act involving the shares of another without consent. He can only transfer his shares to another co-heir of a third party, subject to certain conditions. A single co-heir cannot bind other co-heirs in any action, however, if a decree is issued against one co-heir onto whom all the effects of the deceased are in possession, then that will be binding on all other co-heirs since a decree passed against the co-heir is considered to be a decree passed against the deceased and the co-heirs serve as a representative of the deceased in such a decree. 

Therefore, it was concluded that one co-heir cannot bind the others to a voluntary sale. He can only deal with inherited property in which he has an interest.  He does not have the authority to represent the others, even for the purpose of paying off debts.  

Imambandi v. Sheikh Haji Mutsaddi (1918)

In this case, a man named Ismail Ali Khan died, leaving behind three widows and several children. The petitioner, Enayet-uz-Zhora is one of his widows. She, along with her two minor children, bought a share of his estate through a suit. The defendants disputed the legitimacy of her marriage to Ismail and the children, thus denying her claims over the shares and her right to sell them. The petitioner contended that her children are legitimate, and she is their legal guardian and thus entitled to the share of property that belongs to her children. 

The issue dealt with here was whether a mother’s dealings with her minor children’s property were binding on them. 

The court observed that under the Muslim legal system, the mother has the right to the custody of her minor children, but that does not make her the natural guardian of the children. In the absence of the father, the paternal grandfather becomes the natural guardian, and he has full control over the minors and their affairs. Under Sunni law, after the death of the father, custody vests in the executor appointed by him. If the father dies without appointing an executor, then custody devolves to the paternal grandfather. Therefore, it was held that the petitioner (the mother) had no authority to alienate the property as she was not the natural or legal guardian of the children.

Illyas and Ors. v. Badshah alias Kamala (1989)

The issue in this case revolves around the property of Munilal, an eunuch. Munilal had executed a will in favour of Abdul Gafoor, who claimed ownership of the property. The respondents, an eunuch of Munilal, argued that they followed a Guru – Chela system, and by this, the eunuchs formed a separate class of heirs themselves, and they followed a custom of property transfer among their community. Thus, the respondent, being a disciple of Munilal, claimed ownership over the property and argued that the will in favour of Abdul was forged. The trial judge passed a decree in favour of the respondent and declared the appellant’s will null and void. 

The trial judge’s decision was challenged by the appellant in the High Court, where the bench was to deal with the issue of whether the will executed by Munilal in favour of Abdul Gafoor was valid or not, considering the customs among eunuchs in Muslim law. 

The appellant argued that Munilal, just like any other Muslim, had the right to bequeath his property to him, and the respondent’s claim over the customary transfer of property should not be recognized as it debars the right of a Muslim from executing a will in favour of anyone outside the community, and thus, the custom functions against public policy.

The court, after examining the submission of the respondents, held that the custom followed by the eunuchs is well recognized. The custom does limit the choice of the legatee to execute the will, but that does not make the custom invalid or against public policy. Moreover, the appellant failed to prove the legitimacy of the will document as it did not meet the requirements of Section 68 of The Indian Evidence Act, 1872. It was also established that the property of eunuch cannot be transferred by a will to a person outside the community. 

Therefore, the decision was held in favour of the respondent, and the appeal was dismissed.

Rukmani Bai v. Bismillavai (1992)

The deceased in this case left behind a certain amount of money in his provident fund and EDLI benefits. He had converted to Islam from Hinduism before his death. The respondent’s daughter applied for a grant of a succession certificate under Section 372 of the Indian Succession Act, 1925. The appellant, the niece of the deceased,  filed a suit against the succession court’s decision granting the certificate to the respondent under Section 384 of the Act. The appellant challenged the respondent and claimed the grant for herself. 

The court observed that the deceased had indeed converted to Islam, and the respondent, being his daughter, was eligible to obtain the succession certificate. The court noted that under Section 21 of the Principles of Mohammedan Law, in the absence of a contrary custom, succession of a convert to Islam is governed by Islamic laws. Further, it cited the precedent set in the case of Mitar Sen v. Maqbul Rasan Khan (1930), where the privy council held that when a person changes his religion, his personal laws change, and the new law governs him and his children alike. The court observed that there was no residuary, and thus the daughter was entitled to her share and the share of the residuary under Section 66 of the Mahomedan law. Therefore, the court held that the respondent was legally entitled to obtain the succession certificate, and due to the lack of merit on the side of the appellant, the appeal was dismissed.

Mohammed Gani v. Parthamuthu Sowra (2008)

This case involves the distribution of the property of Abdul Rahiman Rowther. He had divided the property among himself, his first wife, his daughter (the plaintiff) and his two sons ( the defendants). The plaintiff and the defendants were minors when the partition deed was created, with their mother as the guardian.The plaintiff along with the defendants was offered a joint share of their rice mill which was obtained by their mother, of which the plaintiff seeks partition of 1/4th of the share for herself. The defendants refused to allow the plaintiff’s claim. It was argued that the plaintiff, who is married, can only have 1/8 th of share and the defendants were entitled to 7/8th shares according to the Muslim laws of inheritance. The trial court issued a decree in favour of the plaintiff, offering her 1/4th of the share. The defendants appealed against this decision to the Madras High Court. 

The High Court remarked that the partition deed did not specify equal distribution of shares between the plaintiff and the defendants and that the intention of the deceased was for the parties to jointly enjoy the property. However, since the partition is sought, Muslim laws of inheritance will apply, by which the plaintiff is entitled only to 1/8th of shares and the remaining 7/8th shares to the defendants. 

Rijia Bibi and Ors. v. Abdul Kachem and Anr.  (2013)

This case revolves around the validity of the will executed by (Late) Abdul Khalaque. The plaintiffs are the first wife and the sons born through her and the defendants are the second wife and her daughter and sons. The deceased left behind 3.25 acres of land. The plaintiffs claimed partition of the land which the defendants denied, contesting that the property was bequeathed to them in the will. The trial court concluded that the will was forged and favoured the plaintiffs. The defendants filed their first appeal to this judgement, in which it ruled out the possibilities of the will being forged but held that the will was invalid and modified the shares to alloted to the plaintiffs. The defendants then filed a second appeal. The Court upheld the first appeal and stated that the will was void and inoperative. 

The Court referring to Section 118 of principles of Mohammedean law explained that a Mohammedan will should be within a prescribed limit, must have a competent legatee and consent of the heirs should be given after the testator’s death. a muslim can bequeath his property in favour of his heir, provided that the consent of the other legal heirs are sought after the death of the testator. When heirs do not question such a bequeathal for a long time, it amounts to consent. Further, Mohammedan law limits the testator’s power to bequeath estate exceeding the 1/3 rd of the surplus after the payment of funeral expenses and debt. Here, the will exceeds the permissible limit, rendering the will invalid and depriving the plaintiffs of their rightful share. 

Jannath Beevi v. Tahsildar (2022) 

Here, the petitioner, the wife of the deceased, filed for a legal heirship certificate for her husband. The petitioner filed for a fresh application, as she erroneously left out her father-in-law, who is also a valid legal heir. But the application was rejected on the grounds of error and she wasn’t given a chance to speak. 

The issue was thus, whether the rejection of the petitioner’s application to include her father-in-law, was justified. The court, referring to the muslim laws of inheritance, remarked that the father is also a legal heir in line of inheritance to the deceased’s property. It also noted that the petitioner was not heard, which is violative of the principles of natural justice. 

Thus, the court quashed the order which rejected the petitioner’s application and remanded it for consideration in accordance with the law and to provide the petitioner with a fair hearing. 

Conclusion 

Inheritance for Indian Muslims is governed by their respective personal laws, which are based on Islamic or Quranic principles. It contains the framework for how inheritance must pass on within a Muslim family by providing detailed rules on the scheme of inheritance, distribution, and administration of the estate. However, Muslim personal laws are quite rigid and not very open to criticism or amendment. There are standing concerns regarding issues such as, the inequality in property rights between male and female heirs, exclusion of step-children, and illegitimate children and non – recognition of adopted children etc. 

Further, there is an ongoing legal and judicial struggle to bring harmony between personal laws and the constitution, which calls for developing a more inclusive legal framework that could attempt to balance personal and constitutional laws.  

Frequently Asked Questions (FAQs) 

Can a Non-Muslim inherit from a Muslim?

Under traditional Islamic laws, a non – Muslim is not eligible to seek inheritance from a muslim. But in India, if a Muslim person renounces Islam or ceases to be a Muslim, he is still entitled to claim shares of property from his deceased Muslim relative. However, the vice – versa is not true. A person who converts to Islam will thereafter be governed by Muslim personal laws and thus cannot claim shares from his non-Muslim relatives. 

What is the position of illegitimate children, step – children and adopted children under the Islamic rules of inheritance?   

Under Hanafi laws, an illegitimate child is not entitled to claim inheritance from the father, but he or she is eligible to inherit property from the mother and all other relations from the mother’s side of the family. However, under Sunni Islam’s Ithana Ashari school of thought, an illegitimate child cannot inherit property from any of the parents. 

Step – children under Mohammedan laws cannot inherit property from their step parents or their relatives, but a step- brother can inherit from his step-brother or step- sister. 

As for the position of adopted children, it is to be noted that Islam does not recognise the concept of adoption in the first place, hence, adopted children have no right over inheritance. 

Is an insane or unchaste heir eligible for inheritance? 

Yes, under muslim laws insanity and unchastity is not considered as a ground to disqualify a Muslim from claiming inheritance. Thus, an heir who is insane or unchaste is also entitled to inherit.

Can a criminal or convicted person be eligible to inherit under Muslim laws?

Under Muslim personal laws, an heir being a convict or a criminal does not automatically disqualify him to inherit his share of the property. However, under Hanafi law, if an heir is responsible for the death of the deceased whose property he is to inherit, regardless of the crime being intentional, he is disqualified to inherit. In the case of Shia laws, the heir is disqualified from inheritance only if he had intentionally caused the death of the deceased.

References 

• Dr. Paras Diwan’s Family Law (11th edition) 
• https://districts.ecourts.gov.in/sites/default/files/jcjponduru.pdf 
• https://districts.ecourts.gov.in/sites/default/files/jcjponduru.pdf 
• https://lawcorner.in/general-principles-of-inheritance-under-muslim-law/#Distribution_of_Property_under_Muslim_Law 
• https://lawsisto.com/legalnewsread/ODg2NQ==/Exceptions-to-the-Doctrine-of-Spes-Successionis-Shehammal-v-Hasan-Khani-Rawther-Ors 
• https://www.legalserviceindia.com/legal/article-6183-doctrine-of-aul-and-radd.html#:~:text=But%20if%20it%20is%20more,Doctrine%20of%20Radd%20(Return). 

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