Inheritance under Muslim law

हिंदी में पढ़ें
May 29, 2021
By Advocate Chikirsha Mohanty



Every religion in Indiais governed by its respective Personal law. These personal laws also govern property rights. The matters related to 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 inheritanceunder Muslim law.

The Muslim law of succession constitutes four sources of Islamic law i.e.:

  1. The Holy Quran

  2. The Sunna (the practice of prophet)

  3. The Ijma (Consensus of the learned men of the community over the decision over a particular subject matter)

  4. The Qiya(deductions based on analogy on what is right and just in accordance with good principles)

Muslim law recognizes two types of heirs, Sharers, and Residuary. Sharers are the ones who are entitled to a certain share in the deceased’s property and Residuaries would take up the share in the property that is left over after the sharers have taken their part.

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Sharers:

The Sharers are 12 in number and are as follows: (1) Husband, (2) Wife, (3) Daughter, (4) Daughter of a son (or son's son or son's son and so on), (5) Father, (6) Paternal Grandfather, (7) Mother, (8) Grandmother on the male line, (9) Full sister (10) Consanguine sister (11) Uterine sister, and (12) Uterine brother.

The share taken by each sharer will vary in certain conditions. For instance, a wife takes 1/4th of the share in a case where the couple is without lineal descendants, and a one-eighth share otherwise. A husband (in the case of succession to the wife's estate) takes a half share in a case where the couple is without lineal descendants, and a one-fourth share otherwise. A sole daughter takes a half share. Where the deceased has left behind more than one daughter, all daughters jointly take two-thirds.

If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be sharers and become residuary instead, with the residue being so distributed as to ensure that each son gets double of what each daughter gets.



Non-Testamentary and Testamentary succession under Muslim law:

In Non-testamentary succession, 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, situated in the state of West Bengal, Chennai and Bombay, the Muslims shall be bound by the Indian Succession Act, 1925. This exception is only for the purposes of testamentary succession.

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Birthright:

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. If an heir lives even after the death of the ancestor, he becomes a legal heir and is therefore entitled to a share in the property. However, if the apparent heir does not survive his ancestor, then no such right of inheritance or share in the property shall exist.



Distribution of the Property:

Under Muslim law, the distribution of property can be made in two ways – per capita or per strip distribution.

The per capita distribution method is majorly used in 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 per strip distribution method is recognized in 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.

Consult: Top Muslim Law Lawyers in India



Rights of females:

Muslim law 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 the inheritable property. However, it is generally found that the quantum of the share of a female heir is half of that of the male heirs. The reason behind this is that under the Muslim law a 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 wives and children.

Widow’s right to succession:

Under Muslim law, no widow is excluded from the succession. A childless Muslim widow is entitled to one-fourth of the property of the deceased husband, after meeting his funeral and legal expenses and debts. However, a widow who has children or grandchildren is entitled to one-eighth of the deceased husband's property. If a Muslim man marries during an illness and subsequently dies of that medical condition without brief recovery or consummating the marriage, his widow has no right of inheritance. But if her ailing husband divorces her and afterward, he dies from that illness, the widow's right to a share of inheritance continues until she remarries.

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A Child in the Womb:

A child in the womb of its mother is competent to inherit provided it is born alive. A child in the embryo is regarded as a living person and, as such, the property vests immediately in that child. But, if such a child in the womb is not born alive, the share already vested in it is divested and, it is presumed as if there was no such heir (in the womb) at all.



Rights of the stepchildren

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



Escheat:

Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by Government through the process of escheat.



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.



Marriage under the Special Marriage Act, 1954:

Where a Muslim contracts his marriage under the Special Marriage Act, 1954, he ceases to be a Muslim for purposes of inheritance. Accordingly, after the death of such a Muslim his (or her) properties do not devolve under Muslim law of inheritance. The inheritance of the properties of such Muslims is governed by the provisions of the Indian Succession Act, 1925, and the Muslim law of inheritance is not applicable.



Why do you need a Lawyer?

Muslim rights and laws in India can be confusing, since it may be a mix of statutory and personal laws. In order to get clarity, you can approach a Muslim law lawyer. If you have been wronged by someone, you can seek legal remedies. A goodMuslim law lawyerwill help you in your legal proceedings every step of the way. A lawyer will help and guide you in the right direction after understanding the specific facts and circumstances of your case. He/She will draft the required suit/documents/legal notices, will devise the best method you need to undertake in order to get justice, and will also represent you in the courts if need be. Thus, hiring a Muslim law lawyer will help you in more ways than one. You can also use LawRato'sAsk a FreeQuestionservice to get free advice on your legal issuefrom expert lawyers.



 

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