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Succession and administration under Muslim law

February 09, 2021
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Intestate succession

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This article is penned by Shambhavi Upadhyay, currently pursuing BA LLB from Symbiosis Law School, NOIDA. The article deals with the provisions and processes related to the Succession and Administration in Indian under Muslim Law.

Introduction

Every religion in Indian society is governed by its respective Personal law. These personal laws also govern property rights. Inheritance and succession are the key aspects of transferring property and wealth from one generation to the other. This article aims at visiting and understanding the concepts and methods of inheritance in the succession and administration under Muslim law. 

The administration of an estate refers to the process of collecting information about the property and debts of the person deceased, and distributing the remaining assets. The administration of a deceased person’s estate is governed under the uniform law of the Indian Succession Act, 1925 (hereon mentioned as ‘the Act’). However, the substantive law (defining the rights and responsibilities of citizens), still applicable, will be the Muslim Law. However, the latter shall not apply to Muslims who married under the Special Marriage Act, 1954.

 The Muslim law of succession constitutes four sources of Islamic law- 

Administration of the estate of a deceased Mohammedan – general rules 

The general rules under the Muslim Law of inheritance, irrespective of the schools, are that:

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

  1. Paying funeral and burial expenses;
  2. Paying debts of the deceased;
  3. Determine the value/will of the deceased;
  4. Distributing the remaining property and estate to the relatives of the deceased according to Sharia Law.

It is deemed important under the Muslim law that a person leaves behind wealth and property for his Family. In such cases, he may name only 1/3rd of his property to people outside the bloodline. Which leaves at least 2/3rd of his property that can be distributed amongst the family members. Muslim law does not allow him to present any undue bias towards any particular heir and a Bequest/Will in favor of some of his heirs without the knowledge and consent of other legal heirs will be invalid.

Vesting of estate in executor and administrator

Section 2(c) of the Act, defines an executor as a “person to whom the execution of the last Will of a deceased person is, by the testator’s appointment, confided”. That is, he is appointed by the will of the testator.

Section 2(a) of the Act, defines an administrator as a “person appointed by competent authority to administer the estate of a deceased person when there is no executor”. He is, therefore, appointed by the probate division of the High Court.

The estate of executor vests in him from the date of the death of the testator. The administrator’s estate vests in him from the date of his appointment, before that, the judge of the probate division holds the property. Furthermore, Chapter VII, of the Act states the duties of an Executor or Administrator, from Section 316 to 331.

An executor or administrator holds the same power to sue for the course of actions that survive the deceased, and also may recover the debt as the deceased could if he were alive. He holds all rights to prosecute or defend any action existing in favor of or against his decease, except the cause of action against defamation. The executor is responsible for performing all the duties regarding the funeral, inventory, and account, payment of debts from the estate, etc.

Devolution of inheritance

After the death of a person, his property may be devolved in two manners – by the way of his Will (testamentary) and by the laws of succession when there is no Will (intestate). After the requisites of inheritance are made, that is, the burial expenses, debts, and bequests are taken care of, the inheritance is then devolved. According to Muslim law, the heirs are the successors of the deceased who are legally recognized by the Sharī‘ah 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 categorized into two important categories, Sharers and Residuaries. 

  1. Sharers include the husband, wife, father, mother, daughter, the uterine brother, the uterine sister, the full sister, and the consanguine sister. Of all these Sharers, there are four who inherit sometimes as sharers and sometimes as Residuary. These are the father, the daughter, the full sister, and the consanguine sister.
  2. 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 Kindred exists, who are neither Sharers nor Residuaries but are connected by blood relation. 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

The Qur’anic 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 person deceased 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, 1870, it was held by the Court that upon the death of a Muslim owner the heir, but not the estate, become 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.

Alienation

According to Muslim law, and the 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,. the 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 a better ground upon such estate than the person who might have, in good faith, purchased it. 

Distribution of estate

The distribution of the estate under Muslim law can be done in two ways – per-capita and per-strip distribution.

The per capita distribution is majorly used by the Hanafi law. According to this method, the estate is distributed equally between the heirs. Therefore, the share that a person gets depends on the number of heirs that exist. It can be seen as a less complicated and simplified way of distributing the property.

The latter, per strip distribution, is used under the Shia law. Here, the property shall be distributed amongst the heirs according to the strip or the class that they belong to. Therefore, the inheritance depends upon the branch and the number of persons that belong to that branch. If there exists no legal heir in the first branch then the property moves to the other, and in the absence of a second branch it moves to the third. 

Hanafi (Sunni) Law of Inheritance

Hanafi 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 three groups:

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

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 exclude the third. 

I

II

III

  • Parents
  • Children and other lineal descendants
  • Grandparents 
  • Brothers and sisters and their descendants 
  • Paternal, and
  • maternal, 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 than that of the female. This can be contrasted with the Sunni law of inheritance where the daughters are excluded from inheritance.

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 from the paternal or maternal side. As long as they are at the same degree of relationship, they will share in inheritance irrespective of their gender and origin of relationship to 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 the property in absence. A wife, on the other hand, is entitled to one-eighth of the property in presence of a descendant and one-fourth in absence.

The eldest son, of sound mind, is entitled to wearing apparel of the father, his Koran, ring, and sword, provided the deceased has left property besides those articles. 

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 evenly 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. 

References


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