Intestate succession
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This article is written by Shambhavi Upadhyay and has been subsequently updated by Jaanvi Jolly. This article attempts to explain the process of administration of the estate of the propositus under Islamic law and the subsequent process of succession to the property. It explains the concept of executor, administrator, and legal representative, along with the relevant provisions of the Indian Succession Act, 1925. It also attempts to exhaustively deal with the aspect of a ‘will’ under Islamic  law. It discusses the changes in Muslim succession by the UCC in Uttarakhand, along with the major points of difference between the Hindu and Muslim laws of succession.

Table of Contents

Introduction

India is home to numerous religions that have very distinct laws and customs. One could view India like a garden with a great variety of trees. This multiplicity is a result of the inflow of people due to conquests and the rich trading history. 

In India, by virtue of Articles 25 and  26 of the Constitution of India, every person has the right to practice and propagate the religion of their choice. Various religions are governed by their own specific personal laws. In some religions, these laws have been expressly laid down by various statutes, for example, the Hindu Succession Act, 1956, the Hindu Marriage Act, 1955, etc. For other religions like Islam, the laws and rules are still governed by ancient religious texts. 

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The peculiar aspects of Muslim law have always been the topic of inquisitiveness amongst the masses. There are some very unique aspects found in Islamic law, such as the custom allowing up to four marriages for a man, with the male heir receiving double the share of a female heir in case they fall within the same class as residuaries. Unlike any other law, the Islamic law postulates the specific share of each heir in succession under various contingencies. It has also enlisted the various compulsory payments that have to be made after the death of the propositus (the person who has died), after which his estate would be available for succession to the heirs. The administration of the property of a deceased Muslim as per the principles of Shariat law is a process guided by religious teachings and legal frameworks. This branch of law has four major components, each of which fulfils the religious and legal obligations as laid down under Muslim personal law.

  • Executorship – An executor is called a wakil under Islamic  law and is appointed for the management and administration of the deceased’s estate as per the terms of the will. 
  • Inheritance distribution – Under Islamic  law, the Faraid or the specific rules of inheritance specify the fixed shares of heirs on the basis of proximity of relationship. It involves the identification of heirs, the calculation of shares and the distribution of assets.
  • Debt settlement – Prior to the distribution of assets to the heirs, the debts of the deceased have to be settled. Under Islamic  law, the settlement of debt is considered as important as religious obligations. It seeks to ensure that creditors must receive their dues before the devolution of the estate.
  • Asset management – The executor is responsible for safeguarding the assets of the deceased until actual devolution takes place. He is also responsible for investment decisions, property management, and financial planning to ensure long-term sustainability of the estate.

The following are the guiding principles under Islamic law for estate administration:

  • Justice and Fairness– The Shariat emphasises the principles of justice and fairness in matters involving inheritance distribution. It ensures the rightful share goes to the heirs, as per Faraid.
  • Transparency and Accountability– These principles are paramount and the executors are bound to maintain records of all transactions undertaken.
  • Compassion and Sensitivity–  These principles are emphasised to be shown by the executor towards the heirs, especially during the period of grief. He must deal with the administration with empathy and understanding.
  • Stewardship and Trustworthiness– The executor must act as a faithful steward while accomplishing his task, ensuring distribution as per Islamic  principles.

The following are the primary sources of Islamic law dealing with inheritance and succession:

  • The Holy Quran – This is the knowledge revealed by God to the holy Prophet Muhammad through the agency of the Angel Gabriel. These are the revelations in the form of messages delivered over a period of 23 years. It is not a book of law; rather, it is concerned with the conduct of life. It consists of 6,000 verses, out of which 200 deal with the legal principles related to marriage, matrimonial remedies, property, maintenance, etc.
  • The Sunnah – These are the practices or traditions of the holy Prophet Muhammad. It is the model behavior envisaged by the holy Prophet Muhammad.
  • The Ijma – These denote the consensus of the learned men of the community on a particular issue. It supplements the Quranic sunnah.
  • The Qiyas – These are the analogies drawn by the exercise of reasons and deduction of what is right and just concerning the good principles laid down by God. Wherein a particular situation is not covered by the primary sources, it is nevertheless covered by applying the principles of reason. This source is not recognised by the Shias.

The following are the secondary sources of Islamic  law:

Concept of succession and inheritance under Muslim Law

In the words of the scholar Fyzee,” It is as though the estate were a round cake, which from a distance seems entire; but as each heir approaches the table, the cake is found to be carefully cut up and divided proportionately; and all that remains to be done is to hand over to him his particular piece.”

The Muslim Personal Law (Shariat) Application Act, 1937, Section 2, deals with the applicability of the personal laws of Muslims. It provides the Muslim personal law, which is Shariat, an overriding effect over the customary laws in matters relating to intestate succession, special property of females (that includes personal property inherited or obtained under a gift, contract, or other provision of personal law), marriage, dissolution of marriages (which includes all the forms – illa, talaq, zihar, lian, khula, and mubarat), maintenance, dower, guardianship, gifts, trusts, and religious endowments.

General rules governing the administration of the estate of a deceased Muslim 

Administration of an estate is basically the process of how the state of the deceased is to be applied successively to the payment of funeral expenses, expenses of proceedings for obtaining probate or letters of administration, payment for services rendered to the deceased within three months of his death, payment of the debts, whether secured or unsecured, of the deceased, and the legacies. After all of these are paid, the remaining estate is to be distributed among the heirs of the deceased. 

In India, the substantive law that is applicable to the devolution of the estate of a deceased Muslim is still Muslim law, as stated by the 1937 Act. However, the administration of the estate of such deceased Muslims as well as the members of other communities is governed by a uniform law, which is the Indian Succession Act, 1925. But in case a Muslim marries under the Special Marriage Act, 1954, then the succession to his estate, including the substantive law applicable, would be the provisions of the Indian Succession Act, 1925, and not the Muslim personal law. 

The rules that are uniformly applicable to all the schools in matters of inheritance under Muslim law are as follows :

  • The estate of the deceased person includes both movable and immovable property and there is no distinction between the two. 
  • All the property held by a Muslim person is his separate property, therefore, whatever property is received by the heir on the death of the deceased will be his absolute property. The concept of ancestral or joint family property is absent under Muslim law.
  • The question of succession and inheritance arises upon the death of the propositus.
  • The moment a person dies, his heritable property gets vested immediately in his legal heirs, even though the actual calculation of shares will take place in the future. This is because the property can never be kept in abeyance. Thus, it vests immediately upon the death of the deceased.
  • The right of inheritance arises only after the death of the propositus. There is no birthright of any person in another person’s property, unlike in Hindu law, by way of a coparcenary.
  • The nearer legal heir will be given preference over the farther relative.

When a Muslim person dies, it is considered important that the following four duties are performed in the given order:

  • Payment funeral and burial expenses;
  • Payment of debts of the deceased;
  • Check if any testamentary disposition was made via a will.
  • Distribute the remaining estate to the relatives of the deceased according to Shariat law.

It is deemed important under Muslim law that a person leave behind wealth and property for his family. As per Islamic  law, a deceased person can only bequest his property up to the limit of 1/3rd of the property remaining after making the compulsory payments. Which leaves 2/3rd of his property that can be distributed amongst the family members. This bequest can be either in favour of a legal heir or a non-legal heir.

Doctrine of ‘Aul’ 

This doctrine addresses the scenario where the distribution of assets deviates from equity. Upon the distribution of shares to the sharers, the total share distributed is found to be greater than the total fraction of property that is available. In other words, when the total sum of allotted shares exceeds unity, it  necessitates a redistribution to ensure proportional division among heirs. Herein, the total fraction of property is increased, this can be done by reducing the individual size of each share. This is known as the doctrine of aul or the doctrine of increase.

In the Shia law, only the share of the daughter or the full or consanguine sister is decreased, however, no such distinction has been made under the Sunni law.

Doctrine of ‘Radd’

This doctrine addresses the scenario where the distribution of assets deviates from equity. The doctrine of radd, or the doctrine of return, comes into effect when the propositus dies and the shares are allotted to the sharers and the residuaries. According to the rule set out in the holy Quran, the share given to the sharers and the total share available are less than the heritable property then the extra share is distributed proportionally among all the heirs as per their respective shares. When there is an increase in the share, the husband or wife of the deceased will not participate in the case of Sunni law. However, according to Shia law, the husband or wife of the propositus, along with the mother, will not participate.

Concept of will under Muslim Law

In Islamic  law, after a person is deceased, his property is devolved as per fixed portions and shares. Herein, the testamentary freedom is restricted to one-third of a person’s net estate after deducting all the debts and funeral expenses. Under Muslim law, a will is called as a wasiyat. The testator is the person who is making the will and the beneficiary is the one in whose favour the will is made. This is a mode of testamentary succession. Under Muslim law, only 1/3th of the property can be bequeathed by a will and the rest, 2/3rd devolves to the rules of Shariat law. The particular inheritance rules for this heritable share are governed by the specific school that a person belongs to and the kind and number of surviving heirs. If it is made for more than 1/3rd, then it would only be valid with the consent of other legal heirs. If they do not consent, then such will would be invalid. This 1/3rd share has to be calculated after deducting all the compulsory payments like funeral expenses, secured and unsecured debts, etc. 

For instance- 

Total property – Rs. 10,00,000/-

Funeral expenses – Rs. 1,00,000/-

Unpaid salary of a servant- Rs. 1,00,000/-

Secured debt- Rs. 2,00,000/-

Unsecured Debt- Rs. 1,00,000/-

Property left after compulsory payments= Rs. 5,00,000/-

Property that can be bequeathed by will – 1/3rd of Rs. 5,00,000 = Rs. 1,65,000/-

Heritable property left for succession by legal heirs – Rs. 3,35,000/-

Requisites for a Testator

  • The testator must be a Muslim to be governed by Muslim personal law
  • The testator should be of sound mind
  • As a general rule, the testator should be a major, but in case, a will is made by a minor, it will only be valid after he attains majority.

So, it can be concluded that the testator must be an adult Muslim of sound mind. A minor or a lunatic is not competent to execute a will. A minor is generally incompetent to make a will, but when he makes such a will, it may subsequently be validated by ratification on his attaining majority.

Consequences of a  Muslim person solemnising his/her marriage under the Special Marriage Act, 1954

In case a Muslim person gets married under the provisions of the Special Marriage Act, 1954, then the rules of the Muslim personal law will no longer be applicable to him. In this case, the provisions of the Indian Succession Act, 1925, shall be applicable, irrespective of whether the will was made before or after the marriage. However, it must be noted that, as a general rule, the provisions of the Indian succession Act, 1925, are not applicable to Muslims. 

Further, Section 21 of the Special Marriage Act, 1954, clearly postulates that once a person has solemnised his marriage under the Act, the succession to his property and to the property of the issue of such marriage shall be governed by the provisions of the Indian Succession Act, 1925. Therefore, if a Muslim man marries under the Act, the inheritance to his estate would be governed by the Indian Succession Act and not by Muslim personal law.

Will not required to be in writing

Under Muslim law, the will can be oral or in writing, and it is not necessary that it always be in writing. No particular form of word is required, rather, the intention of the tester should be clear.

Status of the will made by a person committing suicide

Under Sunni law, such a will is considered valid. However, in Shia law, if the will is made before the act of suicide, then it is valid. If the will is made after the commission of the act but before the death, such a will is considered invalid. In the case of Mazhar Husen vs. Bodha Bibi (1899), 21 ILRPC 91, the deceased first made his will and then took poison. The will was considered valid. A will made after he has taken poison or done any other act towards the commission of suicide would be invalid under the Shia law. 

Status of the will made by a Muslim person who later renounces his religion

Under Shia law, the position is not very clear. Under the Sunni law, in the Hanafi school, such a request is valid if it is lawful according to the religion to which he has converted. As per the Maliki School of Law, the day the person converts, the will would be deemed to have been annulled.

Status of the will, In case the testator has made a will in favour of X and later X murders the testator 

Under the Shia law, such a will would be considered invalid if the murder was intentional. Under the Sunni law, in the Hanafi school, a will in respect of a person who has caused the death of the testator can be validated if the heirs of the deceased give their consent. In other schools of Sunni law, such a will is invalid, irrespective of whether the death was caused intentionally or unintentionally. 

Validity of bequest to an unborn person

If the child has not even been conceived, then such a will would be void. However, if the child is in the womb and is born within six months of making the will, then under the Sunni law, it would be a valid will. Under the Shia law, the period of six months has been increased to ten months, therefore, if the child is born within 10 months of making the will, it would be a valid will. 

Validity of a will made for religious or charitable purposes

Under Islamic law, a will can be made for religious or charitable purposes. The purpose of making a will may be to benefit individuals or to propagate one’s religion. A will made in furtherance of religious, charitable, or pious purposes is valid, but should not be against the tenets of Islam.

The following are considered pious purposes for the purpose of a will- 

  • Bequest for Faraiz – These are for the purposes or deeds provided in the holy Quran, for example, Hajj.
  • Bequest for Wajibat – These consist of charity given on the day of breaking the fast. 
  • Bequest for NawafilIt – It is purely voluntary in nature, for example, to build a mosque, a school, or a rest house. 

Requirement of probate of a will made by a Muslim person 

The Indian succession Act, 1925, is not directly applicable to such a will, and therefore no procedure is required as per the traditional Muslim law. A probate is a copy of a will that is certified under the seal of the court of competent jurisdiction. Probate can be granted to the executor appointed under the will. However, a will made under  Muslim law does not require probate and can be admitted as evidence if it is duly proved.

In the case of Mohammad Ghosuddin vs. Khaja Mainuddin (2009), the Andhra Pradesh High Court held that under Muslim personal law, the written will require the standard proof as given under Section 67 and Section 68 of the Indian Evidence Act, 1872.

Rules regarding the bequest

  1. The maximum property allowed to be bequeathed is 1/3rd; if more than that is bequeathed, then the consent of the legal heirs is required. In the case of Shias, if the property up to 1/3rd is given either to one of the legal heirs or to a non-legal heir, the consent of other legal heirs is not required. However, if more than 1/3rd of property is given either to a legal or a non-legal heir, the consent of other legal heirs is required. In the case of Sunnis, if the property up to 1/3rd is given to a legal heir, the consent of other legal heirs is required, but if the same property is given to a non-legal heir, no consent is required. However, if more than 1/3rd of property is given either to a legal or a non-legal heir,  the consent of other legal heirs is required.
  2. The consent under the Shia law must be given before the death of the testator. However, as per Mulla’s principles of Mahomedan law (19th ed.), consent can be given either before or after death. In case of Sunni law, the consent is given after the death of the testator 
  3. The consent can be given either by one or all the heirs. In the case that more than 1/3rd share is bequeathed via a will, if one or a few legal heirs consent,  only their share will be given to the beneficiary.
  4. Once consent has been given, it cannot be rescinded.

Rule of preferential treatment under the Shia Law 

In Shia’s, the rule of preferential treatment is applied, which means that the property has to be given out of the total 1/3rd to the first legatee, whose name appears first, and therefore he would be given preference over the others in sequence. The moment the 1/3rd is exhausted, it would be deemed that the full effect has been given to the will. Any other legatee whose name follows after 1/3rd assets have been distributed, will not be given anything. 

For instance-

A Shia man named  X left behind property worth Rs.90,000/-. He made a will as follows-

To A- Rs. 20,000/-

To B- Rs. 10,000/-

To C- Rs. 20,000/-

To D- Rs. 20,000/-

The maximum that he was allowed to bequeath via a will was Rs. 30,000/- as per the rules of Muslim law. Following the rule of preferential treatment, as A was mentioned first in the list, he was given preference and allotted the assets worth Rs. 20,000/-. Next, B has been mentioned and given Rs. 10,000/- which still falls under within the property and can be validly bequeathed; he will also be given his share. However, the property given to C and D, falls beyond the permissible limit, and no consent has been obtained from the legal heirs, therefore, they will get nothing. 

Only in one exceptional circumstance is this rule of chronological priority is not applicable. Under one will, two or more people have been given exactly 1/3rd of the total assets. 

For instance- the total property of X is worth Rs. 1,50,000/- and he bequeathed it as follows-

A – Rs. 50,000

B – Rs. 50,000

C – Rs. 50,000

In this situation, the person whose name appears last gets the 1/3rd share and the person who appears prior to him will not get anything.

Rule of rateable proportions under the Sunni law

In the Sunni law, the rule of rateable proportions is followed, all the persons who have been given a share by the will would be given some share of the property which is permissible to be bequeathed, in proportion to their original shares.

For instance- 

X had total property of Rs. 90,000/-

He bequeathed this property in the favour of –

A for Rs. 15,000/- 

B for Rs. 30,000/-

C for Rs. 45,000/-

= Rs. 90,000/-

But as per Muslim law, only 1/3rd property can be bequeathed via a will.

So now only Rs. 30000 could be bequeathed; therefore, using the principle of rateable distribution, we will calculate the ratio of each person’s share in the property bequeathed by will, which will come out to be 1:2:3 for A:B:C. The sum total of these ratios would be divided by the amount of estate which could be bequeathed. 

Rs. 30,000 divided by 6 = Rs. 5000

Now, A had 1 share = Rs. 5000

B had 2 shares = Rs. 10,000

C had 3 shares = Rs. 15,000

This is how the distribution would be done rateably.

Legal representatives under the Muslim Law

Under Muslim law, the executor or administrator of a deceased Muslim person is usually regarded as his legal representative. The estate, including all the assets of the deceased Muslim person, is vested in him. The duties of such a legal representative or administrator include collection and calculation of the assets, discharging the debts, payment of legacies, and distribution of the balance of the heritable assets among the legal heirs.

In cases where a testamentary disposition is made by a Muslim person, it is not important for the executor or the administrator to obtain the probate of the will. However, if the debts which are due to the deceased are to be recovered, the representation by such an administrator is necessary to represent the estate of the deceased as per the Indian succession Act, 1925. Thus, in case the deceased has made a will, the probate can be obtained, and in case he dies intestate, the letters of administration can be obtained from the court. Once the probate or letter of administration is granted, it conclusively establishes the status of the executive or administrator in order to represent the deceased person’s estate. The executor is usually appointed under the will and he is the one who seeks probate of the will. A letter of administration can be granted to a person who is the legal heir of the deceased.

Once the compulsory payment of funeral expenses, etc., is made, the executor will act as an active trustee in respect of the bequeathable estate, which is a maximum of  up to 1/3rd and as a trustee for the heirs in respect of the remaining 2/3rd heritable property. 

As per traditional Muslim law, a non-Muslim was not allowed to be an executor, but in modern times, even a non-Muslim can be validly appointed as an executor. 

Vesting of estate in executor and administrator

In the case of a will, the estate of the deceased vests in the executor, even if a probate is not obtained by him. It is not necessary for the executor to obtain a probate of the will; however, in case he wishes to sue to recover any debts that were due to the deceased, the court would not pass a decree against such a debtor or allow execution proceedings unless the probate is obtained. Such an executor may also obtain a certificate under the Administrators Generals Act, 1963 or a succession certificate under the Indian succession Act, 1925, in place of such probate.

In the case of letters of administration, the estate vests in the administrator who has obtained such letters. If there is neither an executor nor an administrator, then the property would vest in the legal heirs. 

Under the Indian Succession Act, 1925  various terms are defined as follows:

Under Section 2(a), an administrator has been defined as a person who is appointed by the court or a competent authority to administer and manage the property of the testator after his death. An administrator is to be appointed where either the person has died intestate or an executor has not been named under the testamentary disposition. In the case of an administrator who is appointed by the order of the court, the estate vests in him from the date of his appointment. Until then, the judge of the probate division holds such estate.

Under Section 2(c), an executor has been defined as a person who has been appointed by the testator to execute his will after his death. This appointment is also made under the will. The moment the testator dies, his assets vest in such an executor. 

An executor is required to do the following duties-

  • An executor is responsible to calculate all the assets of the deceased and recover any debts due to the deceased person.
  • An executor is responsible to pay all the charges existing against the estate, including the funeral expenses of the deceased
  • An executor is responsible to pay any debts due of the deceased
  • An executor is responsible to pay for the legacies
  • An executor is responsible to distribute the remaining property among the legal heirs 

Where a Muslim has died intestate and the letters of administration have been obtained by any of the heirs or any other person. Then, consequently, the assets of the deceased would vest in such an administrator, as he acts as the legal representative of the deceased. 

The following are the duties of an administrator-

  • He is responsible to calculate all the assets of the deceased and recover any debts due to the deceased person.
  • He is responsible to pay all the charges existing against the estate, including the funeral expenses of the deceased
  • He is responsible to pay any debts due of the deceased
  • He is responsible to distribute the remaining property among the legal heirs 

In case neither an executor is appointed by the deceased Muslim nor the letters of administration have been obtained in case he dies intestate, then the property would be in the hands of the legal heirs of the deceased. These legal heirs would also be considered the legal representatives of the deceased person.

This estate vests in the legal heirs not jointly but severally in proportion to their share in the estate, right from the time of the death. The heirs hold such property subject to the payment of all the charges and debts, along with the payment of legacies up to the 1/3rd portion, in proportion to their shares.

In case the legal representatives wish to sue to recover the debts due to the deceased person or to initiate execution proceedings against the judgement debtors of the deceased, they either need a certificate under the Administrator Generals Act, 1963 or a succession certificate as per the Indian Succession Act, 1925.

Devolution of inheritance

After the death of a person, his property may be devolved in two ways – by way of his will (testamentary) and by the laws of succession when there is no will (intestate). After the requisites of inheritance are fulfilled, that is, the burial expenses, debts, and bequests are taken care of, the inheritance is then effected. According to Muslim law, the heirs are the successors of the deceased who are legally recognised by the Shariat to inherit his estate, given that they are not impeded from inheritance. The heirs succeed to the estate as tenants-in-common in specified shares. There is no joint tenancy in Muslim law, and the heirs are only tenants-in-common. 

The heirs are further broadly categorised into two important categories, sharers and residuaries. 

  • Sharers include the husband, wife, father, mother, daughter, the uterine brother, the uterine sister, the full sister, and the consanguine sister. Among these sharers, there are four who inherit, sometimes as sharers and sometimes as residuaries. These are the father, the daughter, the full sister, and the consanguine sister.
  • Residuaries are the ones who inherit in the absence of the immediate sharer, and if the estate remains after being devolved between them.

The third category of distant kin exists, who are neither sharers nor residuaries but are connected by blood relations. step-children and step-parents however, do not inherit the property from each other. On the failure of all natural heirs, the estate of the deceased escheats to the government. The state is the ultimate heir of all property if no heir exists.

Extent of liability of heirs for debts

Alienation

The Quranic principle, “There is no inheritance until after the payment of the debt” is an integral part of the Muslim law of inheritance.

Under Muslim law, the property is not jointly held by heirs. Similarly, the debt that they inherit from the deceased person is also divided amongst all the heirs according to the proportion of the estate that they inherit. They are separately responsible for paying that and no one heir is said to be paying on behalf of the other co-heir.

In Muhammad Muin-Ud-Din And Anr. vs. Musammat Jamal Fatima (1921), it was held by the Court that upon the death of a Muslim owner, the heir but not the estate becomes answerable for the debts. Hobhouse, J. observed that “..it is the heirs themselves who are answerable and that to the extent of any asset which they may have received.” This means that along with the estate, the heirs also inherit the debt. They may also be told by the court to pay the amount to protect the rights of the creditor.

According to Muslim law, and judicial precedents, an heir may not be able to alienate the property as long as he does not pay the debts that he has inherited from the deceased. He is duty-bound to pay the same from his share of the estate. In the case of Syed Shah Muhammad Kazim vs. Syed Abi Saghir And Ors (1931), the Patna High Court said that “it is the duty of the heir to pay all debts before appropriating any portion of the assets to his use.” If the heir succeeds in selling the property to a third-party, even then the creditor to whom he owes the debt shall hold better ground upon such estate than the person who might have, in good faith, purchased it. 

Division and distribution of estate

The assets of the deceased under Muslim law are distributed in two different ways. 

  1. Per capita distribution 
  2. Per stirpes distribution 

Under the Sunni law, the method of per capita distribution is followed. As per this method, all the heirs are given the property equally. Therefore, the quantum of each person’s share depends upon the number of heirs that are present. Among all these heirs, the estate is divided equally, each gets an equal share. Further, under the Sunni law, the principle of representation is neither recognised in the matter of determining the claim of an heir nor in determining the quantum of the share of each heir. 

Under the Shia law, the method of per stirpes distribution is followed. Which means that the heir succeeds to the property as per the stirpes or the class that they form a part of. The share is first given to each branch, and then subsequently, that share is divided among the heirs within the branch. In this type of division, the quantum of each heir’s share is dependent on the property that is available to his branch rather than the number of total heirs. Under Sunni law, the principle of representation is recognised for the limited purpose of calculating the share of each heir.

Examples for distribution of estate under Muslim law

In per capita – Sunni law

For instance- A is a Sunni male, he has 2 sons, B and C. B has 3 sons and C has 1 son. If B and C predeceased A, the total no. of heirs for A would be 4, that are the sons of B and C. 

Applying the rule of per capita distribution, the heritable property would be equally divided among all four of them, irrespective of the branch to which they belong. Which means that all of them would get 1/4th of the property of A.

In per stirpes – Shia law

For instance- A is a Shia male, he has two sons, B and C. B has three sons X, Y and Z, and C has one son, S. If B and C predeceased A, the total number of heirs for A would be four, X, Y, Z and S, who are the son of B and C. 

Applying the rule of per stirpes distribution, the property would be divided in half as the quantum of property available to each of the branches would be equal. The first half will be succeeded upon by the branch of B, which includes the three sons of B, which are X, Y, and Z. The second half would be succeeded upon by the branch of C, which includes single son of C, that is S. 

The final share of the grandsons of a would be as follows- 

X – 1/6th

Y – 1/6th

Z – 1/6th

S – 1/2

Sunni law of inheritance

The Sunni law of inheritance only focuses on relatives who have descended from a male member who may be in relation to the deceased person. Each heir holds the property separately, holding a definite share in the estate. 

The Sunni law classifies the heirs of the inheritance into two groups:

  • Quranic heirs – They take an assigned share in the property of the intestate and are first in line for inheritance. This includes the daughters, parents, grandparents, spouses, brothers and sisters, etc. 
  • Residuaries – Inherit property after the shares have been distributed to Quranic heirs. These include both male and female members of the family, which may be in the second line of the bloodline.

The law also fixes shares for the portion of the estate that the heir is entitled to:

  • The widow is entitled to one-fourth share if the couple has no child of their own or a child of a son. If such child exists, she takes one-eighth share. In cases where there are multiple widows, they share equally from the one-fourth or one-eighth property.
  • The father, in absence of a child or a child of a son, is treated as a residuary and is entitled to get the residue after allotment of shares to other Quranic heirs. The father, together with a child or a child of a son, gets 1/6th.
  • The share of the mother is 1/3rd in the absence of a child or child of a son or two full sisters or two full brothers or one brother plus one sister, full consanguine or uterine. However, together with the mother, there are other above mentioned relations. Her share is 1/6th.
  • The son‘s daughter inherits only in the absence of two or more daughters, a son or higher son, son or two or more higher sons daughters. If any of these are present, she is entirely excluded from inheritance. In absence of the above mentioned relations, her share is half in case of single daughter or 2/3rd where there are multiple daughters
  • The husband takes half the share when there exists no child or child of a son and takes one-fourth if they do.
  • The sole daughter is entitled to half the property. In the case of more than one daughter, all the daughters jointly get two-thirds of the estate.
  • If both, daughter and son exist, then the daughter ceases to be a sharer and becomes a residuary sharer instead. Here, a son is entitled to double of what a daughter inherits. 
  • Under the Sunni law, an illegitimate child is considered matris filius, which means he only inherits from the mother.

Illustrative examples of devolution of interest under Sunni law

The deceased is survived by his father, his mother, his paternal grandfather, his maternal grandmother, two daughters, and a son’s daughter.

Here, we will first, calculate the share of the father, he will get 1/6th as there is a child alive. 

Here, the paternal grandfather and the maternal grandmother are excluded by the father and the mother, respectively, as the nearer relatives exclude the farther ones.

The mother will get 1/6th as there are children present, i.e., two daughters. 

Here both father and mother have 1/6th share, as it is only in the case of the residuary where the male takes the double as the female falls in the same class.

Where there are two daughters, they take 2/3rd together. 

The son’s daughter would also be excluded, as she only inherits in the absence of two or more daughters.

Therefore, the final shares would be- 

Father – 1/6

Mother – 1/6

Two daughters – 4/6 

Shia Law of inheritance

The Shia Law divides heirs into two groups – by blood relations (consanguinity) and by marriage (affinity). The heirs by consanguinity are also termed as heirs by Nasab, while the heirs by affinity are heirs by Sabab.

  • Based on blood relations, a further classification is drawn into three classes. Here, the first shall exclude the second from inheritance and the second shall exclude the third. This represents the principle that nearer legal heir will be given preference over the farther relatives.
Class 1Class 2 Class 3
ParentsChildren and other lineal descendantsGrandparents Brothers and sisters and their descendants Paternal, andmaternal, uncles and aunts, and their children
  • In these three classes, there is no difference between the male and female heirs except that a male heir will have double the share of the female. 
  • In respect to the third class of legal heirs in Shia law, there is no preference on the basis that someone is linked to a deceased person from the paternal or maternal side. As long as they are in the same degree of relationship, they will share in the inheritance, irrespective of their gender and the origin of their relationship with the deceased. 
  • The partner is never excluded from the succession, he/she inherits together with the nearest blood relation as may be applicable by the chart mentioned above. A husband is entitled to one-fourth of the property in the presence of a lineal descendant, and half of  the property in his absence. A wife, on the other hand, is entitled to one-eighth of the property in the presence of a descendant and one-fourth in absence.
  • The ‘Doctrine of Primogeniture’ is followed under Shia law. The eldest son, of sound mind, is entitled to wearing apparel of the father, his Quran, ring, and sword, provided the deceased has left property besides those articles. In the case of Syed Mohammad vs. State of West Bengal (2014), it was observed that this doctrine relates to preference for eldest son and not the daughter.
  • An illegitimate child under Shia law is considered Nullius Fillius, which means that he neither inherits from the father nor his mother.

The rules of distribution are as follows :

  • The husband, without children or lineal descendants, takes one- half. In case of children or lineal descendants, his share is one fourth.
  • The widow without children or linear descendants takes one fourth. In case of children or lineal descendants, her share is one eighth. a childless widow gets her one fourth share only out of the movable properties of the deceased husband.
  • The father without children or lineal descendants is entitled to inherit as a residuary. In case of children, his share is one sixth.
  • The mother, in absence of a child or linear descendants or two or more consanguine brothers or one such brother and two such sisters or four such sisters with father, her share is one third. However, in the presence of the above mentioned relations, her share is one sixth.
  • The daughter gets half if she is the sole child. The share of two or more daughters is two-thirds together. However, in the presence of the son, the daughter becomes residuary.

Illustrative examples of devolution of interest under Shia law

A Muslim dies, leaving her husband, mother, and father. 

Here in, the husband and the mother would be the sharers, but the father would become the residuary in the absence of children or other lineal descendants.

The husband will get half

The mother, in the absence of children, would get 1/3rd.

The father is a residuary and gets the residue remaining after allotment of the shares to the husband and the mother, which comes out to be 1/6th.

If the Muslim person mentioned above belongs to the Sunni sect, the mother would not inherit one third out of the entire estate. Rather, she would get one third of the estate, which remains after giving the share to the husband. There in the final shares would have been-

The husband will get  half 

The mother will get 1/3rd of half = 1/6th

The father would get the residue, which is finally  1/3rd

Principle of Escheat

In case, a Muslim does not have an heir to succeed to his property, it has been pointed out that in a country which is governed by the law of Islam, that is ‘Dar-ul-Islam’ this property would vest in ‘Bait-ul-Mal’. However, in India, as we are not a country governed by the law of Islam. Therefore, the law of escheat would come into play and such property would vest in the government.

Relevant provisions of the Indian Succession Act, 1925

The concept of administration of estates was first introduced in India by the British via the Probate and Administration Act, 1881. This Act was later replaced by the India Succession Act, 1925. As a general rule, the provisions of this Act are not applicable to Muslims. However, in case a Muslim solemnises his marriage under the Special Marriage Act, 1954, these provisions become applicable.

Intestate Succession

Part five of the Act deals with interstate succession. Chapter 2 provides for rules applicable in cases of intestate other than the Parsis. Sections 31 to 49 provide for the rules. Sections 31 to 35 provide the general rules. Sections 36 to 40 provide for rules of distribution where there are lineal descendants of the deceased. Sections 41 to 49 provide for rules of distribution where there are no lineal descendants.

The scheme of succession under the Indian succession act is as follows- 

Section 24 defines kindred or consanguinity as the connection between the persons descended from the common ancestor. 

Section 25 describes lineal consanguinity as a relation that subsists between two persons, one of whom is descended in a direct line from the other. For example, a father, a grandfather and  a great grandfather.

Section 26 defines collateral consignment as the relation subsisting between two people who are descended from the same ancestor but neither of whom is a direct descendant of the other. For example, a father’s brother’s son.

Section 32 provides for the rules of devolution of the property. The property of the deceased would first devolve upon the wife or the husband, or upon the kindred of the deceased.

Section 33, in case the deceased has left behind him, a widow and – 

  1. If he has also left behind any lineal descendants, 1/3rd property would go to the window, and the remaining would go  to the descendants
  2. In case there are no linear descendants, but there are persons who are of kindred to him, the widow shall take half of the property, and the other half could go to his kindred 
  3. Where there were no kindred  the entire property would devolve upon the widow.

Section 34 deals with the situation where the deceased has no widow, then his property would go to his lineal, descendants, or  kindred, and in the absence of the above mentioned classes, it would go to the government. This is the doctrine of escheat, as mentioned above.

The rules under Sections  33 and 34 would also apply in the case of a widower.

Distribution to lineal descendants

Section 36 states that after the deduction of the widow’s share, the following rules shall be followed for devolution. 

Section 37 deals with the situation where the deceased has left behind him, surviving a child or children, but no more remote lineal descendant via a deceased child, in the case of a single child, he would take the entire property and in the case of multiple children, it shall be equally divided among them.

Section 38 deals with the situation where the deceased has no surviving child, but has a grandchild and no more more descendants through a deceased grandchild. Then the property shall belong to the surviving grandchild or grandchildren, divided equally among them.

For Instance:  X has three children, A, B and C. They all die before the father, A dies, leaving two children, B three, and C four. Afterwards, X dies intestate, leaving those nine grandchildren and no descendant of any decreased grandchild. Each of his grandchildren will have a one-ninth share.

Distribution where there are no lineal descendants

Section 41 provides the rule in case the deceased has no legal descendants, and after deducting the widow share, the following rules shall be applied.

Section 42 states that the father of the intestate is living. He shall inherit the property.

Section 43 states that the father of the intestate is dead, but his mother and brothers or sisters are living, and he has no child living of any deceased, brother or sister. Then the mother and each living brother or sister shall succeed in equal shares.

Section 44 states that where the father of the intestates is dead, however, the mother is living and the brother or sister and the  children of any preceding brother or sister are also living, then the mother and each living, brother, sister, and the living child of the deceased, brother or sister shall be entitled to the property in equal shares. However, the children of the disease, brother or sister, would only take the share, that their respective parents would have taken if they were living at the time of succession. 

For Instance: X, the intestate, leaves his mother, his brothers B and C, and also one child of a deceased sister, D, and two children of E, a deceased brother of the half blood who was the son of his father but not of his mother. The mother takes one-fifth, B and C each take one-fifth, the child of D takes one-fifth, and the two children of E divide the remaining one-fifth equally between them.

Section 46 states that in the situation where the father of the intestate is dead, however, the mother is living and there are no brothers or sisters, or children of any such brothers or sisters living, then the property shall belong to the mother.

Section 47 states that in cases where there is neither a lineal descendant nor father nor mother, the property shall be divided between his brothers and sisters, and the children of such of them as have predeceased him.

Section 48 states that where the interstate has neither a linear descendant nor parent, nor brother, nor sister, then his property will be equally demanded among the relatives of the nearest degree of kindred to him.

For Instance : X, the intestate, has left a grandfather, a grandmother and no other relative standing in the same or a nearer degree of kindred to him. They, being in the second degree, will be entitled to the property in equal shares, exclusive of any uncle or aunt of the intestate, uncles and aunts being only in the third degree.

The First schedule in the Act provides a table of consanguinity. Herein, the father, falls in the first generation along with the son and the grandson The grandfather falls into the second generation with the  great grandson. The great grandfather falls in the fourth generation and the great great uncle falls in the fifth generation. 

Legal action against and on behalf of the estate of the deceased

Part seven of the Act deals with the protection of the property of the deceased; Section 192 to 210 fall within this part.

Section 192 provides the right to a person who claims the property of the disease by succession to approach the court for relief against any wrongful possession by another person. An application can be made to the district judge where the property is situated, either after the actual position has been taken or when there is an apprehension of the force being used to seize the possession.

Part eight of the Act deals with the representative title to the property of the deceased on succession. Sections 211 to 216 fall within this part.

Section 211 declares the character of the executor or administrator, such person is considered the legal representative of the deceased and all the property of the deceased person is deemed to vest in him. However, as per subsection (2), if the property was to survive upon any other person as per the personal law applicable in the case of Muslims, then such property would not vest in the executor or the administrator.

Section 212 postulates that no right in respect of any part of the property of the deceased can be established in court until the letters of administration have been granted by the court.

Section 213 states that a person cannot establish any right as an executor or a legatee in any court unless a court of competent jurisdiction has granted the probate of such a will or has granted the letters of administration with the will.

Section 214 provides that the proving of a representative title shall be a condition precedent for recovery of any debts, either due from the deceased or due to the deceased. 

It clearly stipulates that no court shall, 

  • Pass a decree against the debtor of the deceased for payment of such debt to a person claiming it on succession
  • To proceed upon the application of the person claiming to be entitled upon succession to execute against such a debtor decree for the payment of his debt due to the deceased

Unless the person claiming produces- 

  • A probate or letter of administration granted by a competent court
  • Certificate under Section 31 or Section 32 of the Administrator Generals Act 1963
  • A succession certificate granted under Part X of the Indian succession Act, 1925

Section 216 clearly states that once the probate or letter of administration has been granted to a person, no one else shall have the power to sue or prosecute any suit or act as a representative of the deceased until the probate or letter of administration has been recalled or revoked.

Part Nine of the Act deals with probate letters of administration and the administration of the assets of the deceased. Chapter 1 of the part deals with the grant of probable letters of administration. Section 218 to Section 236A fall within this part.

Section 218 states the persons who may be granted the letters of administration. in case the deceased person has died in the state and was a Hindu, Muslim, Buddhist, Sikh, or Jain. The letters of administration of the estate can be granted to any person who would be entitled to part of his estate as per the rules of distribution applicable in the case of the deceased.

Section 220 explains the effect of the grant of such letters of administration. These entitled the administrator to be entitled to all the rights that belonged to the interstate before his death.

Section 222 states that the probate can only be granted to an executor who is appointed by the will, this appointment can be either expressed or by necessary implication. 

Consequences in the case of apostasy by a Muslim person

The moment a Muslim person commits apostasy, he gets excluded from the Islamic  Commonwealth, and all his rights, interests, status, and relations get automatically extinguished. An apostate from Islam and an original non-Muslim are equally viewed in Islamic  law. If a deceased Muslim leaves behind him three heirs, the first one being a non-Muslim, the second being an apostate, and the third being a Muslim, then, as per Muslim law, the first two would be excluded from succession and inheritance would go to the third year, even if he is the remotest in terms of proximity. This clearly shows that an apostate is excluded from the inheritance of properties from his Muslim ancestors. Further, if we consider the case where the deceased person has converted to another religion from Islam, the jurist Ameer Ali, quoted from ‘Fatwa-e-Alamgiri’, that under Sunni law, a Muslim does not inherit from a non-Muslim nor does a non-Muslim inherit from a Muslim. Similarly, as per Dr. Abid Hasan, in his Islamic  laws of inheritance, a Muslim cannot be the heir of a disbeliever, nor can a disbeliever be the heir of a Muslim. However, in India, this rule cannot be applicable after the Caste Disabilities Removal Act 1850.

Relevant case laws

Krishna Das Chaudhary vs. Prabin Rahman Hazarika (2015)

In this case, the question arose, whether the offspring born out of a ‘Nikah’ would inherit the  property of their father on his death if the father became a Hindu before his death. The Guwahati High Court stated the position settled in Islamic  law that a Muslim cannot be the heir of a disbeliever nor can a disbeliever be the heir of a Muslim. Therefore, when an apostate dies after embracing Hinduism, he will be governed by Hindu law at the time of his death. Therefore, the succession to his estate would be governed by the Hindu Succession Act of 1956. Therefore, it was held that inheritance does not take place beyond the periphery of religion.

Rukmanibai vs. Bismillabai (1992)

In this case,  the deceased had 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 court’s decision granting the certificate to the respondent under Section 384 of the Indian Succession 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, as per the Principles of Mohammedan Law, in the absence of a contrary custom, the succession of a convert to Islam is governed by Islamic  laws. Further, it cited the precedent set in the case of Mitar Sen Singh vs. 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.

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

In this case, the question arose in regards to the will executed by 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 Court stated that the will was void and inoperative by referring to the principles of Mohammedan law. It explained that a bequest by a Muslim will should be within a prescribed limit, have a competent legatee and have the consent of the heirs 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 is 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 estates 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. 

Validity of gender discriminatory provisions under Muslim law in light of Article 13 and Article 14 of the Constitution of India

The Constitution of India guarantees the right to equality under Article 14 and Article 15, which prohibit discrimination on the ground of gender, religion, race, caste, sex, place of birth, etc. Article 13(3)(a) defines “Law”, According to this article, law includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage. This definition of law is given a wide meaning so that it can be made applicable to a wide variety of state instrumentalities. The question arises as to the scope of ‘law’ under this provision.

While the Constitution of India came into force only in 1950, the personal laws of various religions have been in existence since a very long time. These personal laws govern subjects of private nature, such as marriage, divorce, succession, etc. Article 13 (1) provides for the doctrine of eclipse, according to which “All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.”

Since the commencement of the Constitution of India, the Supreme Court of India has faced the dilemma of constructing a satisfactory compromise between the two extremes. On one hand, the personal laws and the religious practises and on the other hand, Part 3 of the Indian Constitution deals with the fundamental rights. 

This question has been discussed in a catena of judgements by the Supreme Court, a few of them have been discussed herein to foster a better understanding of the position. The first case dealing with the issue was  State of Bombay vs. Narasu Appa Mali (1951), where the validity of the  Bombay Prevention of Hindu Bigamous Marriage Act 1946 was in question. The constitutional validity of the act was contended to be in conflict with Articles 14, 15 and 25 of the Constitution of India. The question that arose before the Bombay High Court was whether the personal  laws of Hindus, Muslims and other communities would be considered as ‘law’ within the meaning of Article 13 (3)  and  Article 372 (3) of the Constitution. It was held by the High Court that personal laws are not included within the term ‘law’ under Article 13, nor are  they ‘laws in force’ saved by Article 372. 

Further, it was held that the personal laws would not be laws in force under Article 13 as they are supported by religious and customary practises, and the principles enshrined within Part 3 of the Constitution of India cannot be applied to the personal laws. However, at the same time, the court said that a distinction must be drawn between religious faith, beliefs and religious practises. What the state protects is religious faith and belief, and if a particular religious practice runs counter to public order, morality, or health welfare, then such practice would come out of the purview of the protection. In the case of Ahmedabad, Women Action Group vs. Union of India (1977), the Supreme Court reiterated that the personal laws of Hindus, Muslims, Christians, etc. are not part of the definition of ‘law’ under Article 13 of the Constitution of India.

Presently, the Narasu Appa Mali judgement remains a good law on the question of the applicability of Article 13 on personal laws. However, over the years, we have seen diverging opinions from various courts on the question. On one hand,  the principle of ‘non-interference’ has been adopted in cases like Krishna Singh vs. Mathura Ahir (1979), wherein it has been held that Part 3 of the Constitution of India would not have an effect on the personal laws and therefore have refused to test the personal laws against the fundamental rights guaranteed to the citizens. On the other hand, in cases like Daniel Latifi vs. Union of India (1986), the courts have adopted the ‘scrutinising approach’ and have tested the personal rights on the touchstone of the fundamental rights guaranteed by the Constitution of India.

Impact of Uniform Civil Code (UCC)

The need to bring in a Uniform Civil Code has been expressed by the Apex Court in various decisions, including Lily Thomas vs. Union of India (2000) and Mohammed Ahmed Khan vs. Shah Bano Begum (1985). Wherein the Supreme Court directed that the parliament should take steps to establish a Uniform Civil Code. There are several matters where personal laws come into conflict with the fundamental principles enshrined in the Constitution of India. To remedy this position and bring about uniformity in the applicability of laws, the need for a Uniform Civil Code has been constantly reiterated.

Changes introduced in the Muslim law of succession under the Uniform Civil Code enacted in the state of Uttarakhand

Uttarakhand is the first State in India to introduce the Uniform Civil Code of Uttarakhand 2024 (hereinafter referred to as the UCC). Prior to the UCC, the inheritance laws in Uttarakhand varied according to the religion of the parties concerned, as was prevalent in other parts of India. However, now it would extend to all the Indian citizens who have been  permanent residents of Uttarakhand for the last 15 years. It has introduced a new mechanism for interstate succession. However, if there is a will, then the UCC laws on inheritance would not apply.

  1. Removal of Fixed Shares– Under the traditional Muslim law, a fixed proportion of shares were listed, which resulted in an  unequal distribution that favoured males. Now, under the UCC, no fixed shares are provided. It now permits the individuals to distribute property freely without adhering to fixed proportions; for instance, the  limit of 1/3rd of the property bequeathed by will is now abrogated.
  2. New regime of Succession– Under the UCC has established the general rule of succession regarding Muslims dying intestate. It now provides for two classes of heirs, class 1 and class 2 along with two residual categories of other relatives. This marks a departure from the Muslim law rule of fixed shares.
  3. Equality between sexes– Under Muslim law the females falling into the same class as males were entitled to half of the share of the male. Now the UCC gives Muslim women equal rights to property as Muslim men.

Conclusion

The succession act for Muslims in India is not singular but a composition of many individual laws. They apply differently to people according to the sect that they belong to. There are many differences between Sunni and Shia laws of inheritance, which have been touched upon in this article. Moreover, it is significant that the general principles of Muslim law apply equally to the whole community. The laws are not completely codified, but they are a result of customs and practices that have been followed over centuries in the Islamic  community all around the world. The testate and intestate successions are both distinct and follow separate processes for the devolution of inheritance. The concept of will under Muslim law is also very unique due to the limitations imposed on it. To conclude, it can be said that the law of succession under Muslim law is a meticulously designed and intricately thought of framework that specifies the shares of all the members under various contingencies. This process, unlike the Hindu law, has not undergone much change since independence.

Frequently Asked Questions (FAQs)

What are the major differences in the law of succession between Muslim and Hindu law? 

In the case of Mukhtar Ahmad vs. Mahmudi Khatoon (2010), the Jharkhand High Court discussed the question relating to the concept of jointness under Muslim law. The Court referred to the concept of the law of inheritance as discussed by Tahir Mahmood in Chapter 12, under the heading Muslim law, concepts known and unknown. 

It stated that the Muslim law of succession is different from the parallel indigenous system of India. The doctrine of right by birth, which is the foundation of the law of succession under Hindu law, is unknown to Muslim law. The inheritance procedure under Islam is close to the classical Dayabhaga law but still has fundamental differences. 

Further, it was stated that the division of property into obstructed and unobstructed heritage and self-acquired and ancestral property is foreign to Muslim law. Whatever property one inherits from his ancestors or other people under Muslim law is his absolute property, irrespective of the gender of the person. As per Muslim law, as long as the person is alive, he is the absolute owner of his property and no other person, including his son, has any right to it. It is only upon his death that the question of the legal rights of the heirs arises.

Further, the joint Hindu family concepts of undivided family, coparcenary, kartaship, survivorship, and partition have no place in the Muslim law, where a father and a son living together do not constitute a joint family. 

Further, under Muslim law, the sex of a person is no bar to inheriting property, unlike it was in traditional Hindu law. No exclusion from inheritance can be practised in the case of a woman only on the basis of her gender and they are given equal right to inherit independently as males. They are not merely given a restricted right to receive maintenance or the right to hold property in lieu of maintenance, as was present under traditional Hindu law. There is neither a concept of Stridhan nor a concept of a woman’s limited state reverting to others upon her death in Muslim law.

Are Adopted children considered legal heirs under Muslim law?

Adoption is not permitted as per the personal laws of Muslims. They can go for guardianship of a child through the Guardians and Wards Act, 1890. In the case of Mohammed Allahabad Khan vs. Mohammad Ismail (1886), it was held that there is nothing in the Mohammedan Law similar to adoption as recognized in the Hindu System. ‘Acknowledgement of Paternity’ under Muslim law is the nearest process to adoption. Where a Muslim acknowledges a child to be his legitimate child, the paternity of that child is established upon him, however, it cannot be used to legitimise a child known to be illegitimate.

However, recently, the Supreme Court, in a landmark judgement of Shabnam Hashmi vs. Union of India (2014), extended the right of adoption to Muslims under the provisions of the Juvenile Justice Act 2015.

What is the concept of Hiba under Muslim law?

The term Hiba is of Arabic origin and literally means gift. Under Muslim law, where a living person voluntarily transfers ownership of property to another living person, it is called Hiba. It is a transfer of absolute interest and any restraining conditions or partial transfer of rights in the gifted property are opposed to the concept of Hiba under Muslim law. The property transferred as Hiba should be in existence at the time of transfer and any transfer of property that will exist in the future is void. It is a transfer inter vivos and is done by the acts of parties and not by the operation of law. 

References

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