In this blog post, Harsha Asnani, student, NIRMA University, Ahmedabad writes about the rules governing inheritance under Muslim law.
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), Qiya (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 left over 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.
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.[1] 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.
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.
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[1] Retrieved from http://www.shareyouressays.com/117457/13-general-principles-of-inheritance-under-muslim-law-in-india
CORRECTION:
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.
CORRECTED:
Between C and C’s children F and G, C would totally exclude F and G from inheriting the property. Therefore, it is said that the nearer heir excludes the remote heir from inheritance.
[…] has not even an inchoate right to the property of his ancestor until the death of that ancestor.[1] It is further argued that a right which was not vested in any possibility cannot give rise to […]
Me and Wife are Muslim and we have only 2 daughters. how the property of me and wife will be shared. Is it possible we can make a will to give away our whole property to daughters. Please advice.
Hi
I had purchased property in 2011 from muslim person who had bought it self (on his name). I believe this will be his self acquired property. Will there be any issue if i want to sell this?
AS INHERITANCE THE DAUGHTERS COLLE CTIVELY WILL GET TWO THIRD ONLY. THE REMAINING WILL GO TO RESIDURIES OR DISTANT KNIDRED. IF YOU WANT THE PROPERTIES EXCLIVELY[SOME TIMES FOR THE SURVIVING SPOUSE] YOU ARE REQUIRE TO WRITE A SETTLEMENT DEED PRIOR TO DEATH.
A Sunni Musilm widow is a second wife of her deceased husband. Her deceased husband has wife and two male children in the first marriage. What is her share in husband’s property as per intestate succession.
Thank u for the article.
If A is muslim women having husband 3 sons and 4 daughters of which one son dies before her death and husband after her what will be their share in A’s property. Pls help
A Hindu women married and converted to Islam is she able to sell her ancestral property to a buyer (a Hindu) for a consideration without any legal complication of regious rules of Muslim law on women in India?
Hello, I need to ask a question. We are Muslims. My mother has a house in Mumbai. She passed away in 2016 and then my Father passed away in 2017. Now, I have 2 sisters (both married) and no brothers. There is no will available. Is it possible to transfer the property from my Mother’s name to my name? If YES, what would be the process?
really useful article. thanks to author.
useful article. thanks to author.
If A is a unmarried men , he has his own earned property as well as anchesteral properties also.
A has two elder brothers C and D , C has E( daughter) and F (son) and D has G(son)H(daughter)I(daughter).
E and F take cares of A till death, so A has written a will of his own earned property stating that it belongs to E and F.
By shariat law,
is it valid or not?
Can G,H and I claim for A’ s willed property?
“A” who was retired government employee and from the retirement benefits purchased the property under registered sale deed in the name of his three sons jointly “B, C, D”. “A” died, and now “B to D” are making efforts to alienate the property, whether the children of “B” who are three in number i.e., two sons and one daughter can claim the share under Muslim Law. Kindly do needful in the said regard
It was a very useful opinion Miss Harsha
Thanks a lot for providing a detailed essay on Muslim Law.