Inheritance under Muslim law

April 05, 2024 हिंदी में पढ़ें

Every religion in India is 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 inheritance under 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.

Concept of inheritance under Muslim law

Certain rules governing the division of property among family members in Islamic inheritance have their roots in the teachings of the Quran and the sayings of the Prophet. Notably, the court emphasised that Muslims do not follow the joint family system in regards to inheritance in the case of Abdul Raheem v. Land Acquisition Officer (1989), and that after a Muslim dies, their estate's rights, titles, and interests cease to exist and vest in others. Here is a summary of how inheritance shares are calculated-

  1. No Birthright Inheritance: Not all Muslims have a birthright to an inheritance. A person must survive longer than the deceased in order to inherit.

  2. Even a baby still inside its mother's womb has the potential to inherit if it is born alive. Those who are stillborn are not regarded as heirs.

  3. Inheritance for Men and Women: Heirs of any gender are eligible to inherit. Females often receive half of what their male colleagues do, though.

  4. In a marriage, both the husband and the wife have an equal right to inherit from one another.

  5. A widow who has children or grandchildren inherits 1/8 of her deceased husband's assets. In this case, she receives one-fourth. If the marriage took place while the husband was still ill and was not finished before his passing, the widow is not entitled to an inheritance. However, she can still inherit if her spouse divorces her before passing away till she gets remarried.

  6. Priority to Ascendants: In terms of inheritance, the deceased's ancestors are given preference over their offspring.

  7. Two Different Heirs: Sharers (Quranic heirs) and Residuaries are the two types of heirs recognised in Islamic inheritance.

  8. Residuaries receive the remaining assets, but Sharers are only entitled to a certain share of the inheritance per Quranic standards. As an illustration, if a Muslim man (M) passes away and leaves behind a widow (W) and two sons (S1 and S2), W would receive 1/8 of the estate as a sharer, and the remaining 7/8 would be given to the residuary, S1 and S2.

  9. It's crucial to keep in mind that Sunni and Shia Muslims may interpret these laws significantly differently, resulting in differences in their inheritance laws.

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Sunni Law of Inheritance

The majority of Sunnis in India are Hanafis and are subject to the Hanafi school of law. By including the Quranic class of heirs, the Hanafi laws seek to achieve a more amicable connection between the customary law and the Quranic law. As a result, the customary heirs are not denied their share and just a portion of the estate is given to the Quranic heirs. It is significant to observe that the preference for agnates over cognate heirs persisted even if the newly constituted class of heirs included females. In other words, the Quranic class acknowledges that female agnates have the same right to inherit as their male counterparts. In two situations, the Quranic heirs and the traditional heirs have different positions with regard to inheritance:

  • If a Quranic heir is closer to the deceased than a conventional heir, the Quranic heir receives a piece of the estate first, and the conventional heir receives the remainder.

  • If the closeness of the Quranic and customary heirs is equal, the customary heir receives a part that is double that of the Quranic heir.

Despite the fact that agnates have a preference in inheritance over cognates, cognates like uterine brothers and sisters are nonetheless included in the succession process. According to Hanafi law, the heirs of the decedent are either sharers or residuaries if neither of these groups of heirs exists, the inheritance is distributed to other members of the decedent's & quot distant kindred.& quot If a Muslim passes away without any heirs, the property passes to the state through escheat in the event of absence or some other circumstance that prevents distant relatives from inheriting. According to Sunni law, an estate is divided per capita, therefore each heir receives an equal share of the deceased's estate. As a result, the number of heirs determines how many shares each person receives.

Shia Law of Inheritance

The fundamental principles of Ithna-Ashari law serve as the basis for Shia inheritance law. Contrary to the rigorous understanding of Sunni law, the Quranic laws are construed extremely broadly in this context. Due to this, Shia laws' concepts and regulations of succession significantly differ, leaving them with a nearly separate system. Shia law adheres to the principle of per-strip distribution, meaning that the heirs' share of the property is determined by the strip to which they belong. The rights of agnates over cognates or of males over females in regard to inheritance are not recognised in Shia law. The rights of husband and wife do, however, have one exception: the inheritance of the deceased passes to blood relatives equally, and women are only permitted to receive half of the portion of the men in each class. As a result, there is no preference between the descendants, ascendants, and collaterals as to who receives the inheritance first because they all inherit simultaneously. Consequently, the Shias' entitlement to inherit is dependent on two types of relationships: Nasab refers to blood ties or consanguinity, while Sabab denotes a specific cause or heirs by affinities acquired by marriage. Immovable property located in Chennai, West Bengal, or Bombay is an exception in testamentary succession, where Muslims are subject to the Indian Succession Act, 1925, rather than Sharia law.

The rule of spes succession in Muslim Law

It is crucial to follow the doctrine of spes successionis when transferring property. The Latin proverb & quot Spes successionis& quot means & quot expectation of succession.& quot It indicates that someone who is the apparent heir of another person is anticipated to inherit that person's estate upon his or her passing. According to the rule, simply because someone is anticipated to inherit property after someone else passes away does not equate to his having an interest in that property. Therefore, the mere & quot chance& quot or & quot expectation& quot of succeeding to a property does not provide him any legal rights over the property. According to Section 6(a) of the Transfer of Property Act, 1882, a Spes Succession cannot be transferred under Indian law. The Muslim law of inheritance does not, however, recognise the spes succession rule. As a result, the transfer of spes succession is regarded as the renunciation of the right to succeed. It is not permissible to include in a legitimate transfer or release the possibility of a Muslim heir apparent inheriting an estate. The notion of spes succession need not be taken into account in a family arrangement, according to the decision in the case of Shehammal v. Hasan Khani Rawther and Ors. (2011). The respondent in this instance was one of the heirs apparent to receive a portion of the plaintiff's estate. But even before receiving his part, the responder and his father signed a deed giving up their ownership rights in exchange for money. Whether a Mohammedan can renounce his right to inherit through a familial agreement even before purchasing the land was up for debate before the Apex Court. The doctrine of spes successionis can be avoided in family arrangements or in situations when inheritance rights are given up for consideration, it was decided.

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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 a 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 the 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.


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 & ndash 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.

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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 their 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 the inheritance continues until she remarries.

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.

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

The 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, becomes answerable for the debts. Hobhouse, J. observed that “ 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.

The procedure of inheritance under Muslim law

The inheritance process is clearly outlined by Muslim law, although the Indian Succession Act, of 1925 governs the handling of a decedent's estate. The following are the essential steps in the inheritance process:

  1. A Muslim must be nominated as the executor, who will act as the deceased's legal representative. The executor's duties include gathering assets, paying off debts, paying out bequests, and distributing the remaining assets to the beneficiaries.

  2. If the deceased had a will, a probate is necessary to pay off debts. If not, letters of administration must be obtained. A letter of administration is received if the person dies without leaving a will (intestate). To prove the executor's authority in court, certain documents are produced.

  3. The executor is responsible for paying funeral costs and debts, as well as acting as an active trustee for one-third of the estate (shares that can be bequeathed) and a bare trustee for the other two-thirds (shares that belong to the heirs).

  4. If the executor is unable to get a probate, the court names a replacement administrator and attaches a copy of the will. A successor, legatee, or creditor of the decedent may also be given the letter of administration.

  5. Anyone with a stake in the estate or the deceased person's possessions may launch a lawsuit for estate administration. In order to do this, debts must be identified, and assigned to family members, and a declaration and delivery of interest must be obtained.

  6. If a Muslim passes away without naming an executor, the assets pass to the heirs, who take on the role of legal representation. To take legal action against the deceased's creditors in this situation, a certificate under the Administrator General's Act or a succession certificate under the Indian Succession Act, of 1925 is required.

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Difference between inheritance and succession

Though the terms succession and inheritance have similar meanings, when it comes to the transfer of property, Indian law treats them as two distinct legal notions. The process through which an estate, along with its rights and obligations, are transferred from one person to another is known as succession.

  • The process of deciding who is eligible to receive a deceased person's estate is called succession.

  • Inheritance is the process of passing a deceased person's ownership and interest in their property to their legitimate heir.

In terms of Muslim personal law, succession refers to the transfer of duties, obligations, and rights to the designated legal heir following a person's passing. It includes functions like guardianship, property distribution, asset transfer, and inheritance. In line with the exact shares and parts allotted for each category, inheritance, as defined by Islamic law, is the division of property among various classes of heirs.

Case Study of Muslim Law of Inheritance

Abdul Majid Khan Sahib v. Krishnamachariar (1916)

In this instance, the court ruled that it is against Islamic law for one co-heir to deal unilaterally with the shares of another without that co-heir's consent. As they are recognised as the deceased's representatives, all co-heirs are subject to any judgment rendered against one co-heir who is in charge of the estate. This case emphasised the significance of co-heirs permission and made clear the limited authority of individual co-heirs in property disputes.

Imambandi v. Sheikh Haji Mutsaddi (1918)

The case concerned how Muslim law applied to a mother's transactions with the property of her minor children. The mother is not the children's natural or legal guardian in the absence of the father, the court found. As the natural guardian, the paternal grandfather now has complete authority over the minors and their affairs. The particular guardianship structure found in Muslim inheritance rules was highlighted by this case.

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

The case involved eunuch property allocation in the framework of traditional transfers and Islamic law. The court acknowledged the legitimacy of the eunuchs' custom, which constrained the options for legatees to carry out a will. Setting a standard for Muslim community property transfer customs, it emphasised that while the custom limited the legatee's options, it did not render the custom invalid in and of itself. The decision was held in favour of the respondent, and the appeal was dismissed.

Rukmani Bai v. Bismillavai (1992)

This case highlighted the alteration in personal laws that occurs with religious conversion by involving the issuing of a succession certificate for a Hindu convert to Islam. The convert's daughter was entitled to the succession certificate, the court said, and Islamic law applied to the succession. It emphasised the legal guidelines that apply to conversions and how they affect heirs' legal rights in the context of Islam.

Mohammed Gani v. Parthamuthu Sowra (2008)

The issue concerned the division of property among heirs in accordance with Muslim inheritance laws and a partition deed. The court found that even though the partition document did not provide for equitable distribution, Muslim law had to be followed. This ruling, which emphasised the application of particular legal concepts within the Muslim inheritance framework, gave the plaintiff an eighth of the shares and the defendants a seventh.

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

This dispute concerned the legality of a will and how property should be distributed among successors in accordance with Islamic law. The will was declared illegal by the court because it went beyond what was allowed under Muslim law, preserving the plaintiffs' due portion. The case reinforced the need to abide by certain legal rules, especially in Muslim laws when it comes to wills and bequeathals.

Jannath Beevi v. Tahsildar (2022)

The petitioner in this instance requested a legal heirship certificate for her late spouse but unintentionally left out her father-in-law. The court explained the father's standing as a legitimate successor under Islamic law and stated that the petitioner had not been granted a fair hearing, which went against the fundamentals of natural justice. As a result, the decision to deny the application was overturned, and the matter was sent back for a fair reassessment, emphasising the significance of a just judicial procedure in the context of Islamic law. The judgement was with consideration in accordance with the law and the aim to provide the petitioner with a fair hearing.

Why do you need a Lawyer?

Muslim rights and laws in India can be confusing, since they 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 good Muslim law lawyer will 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's Ask a Free Question service to get free advice on your legal issue from expert lawyers.

These guides are not legal advice, nor a substitute for a lawyer
These articles are provided freely as general guides. While we do our best to make sure these guides are helpful, we do not give any guarantee that they are accurate or appropriate to your situation, or take any responsibility for any loss their use might cause you. Do not rely on information provided here without seeking experienced legal advice first. If in doubt, please always consult a lawyer.

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