This article is written by Gaurav Purohit of Amity University Rajasthan Currently Pursuing BBA LLB.
INTRODUCTION
The Muslim Law of Inheritance was understood on the Foundations of Pre Islamic Customary Law of Succession. There is no understanding of Joint Family Property in Muslim Law. The teachings of Mitakshara School of Hindu Son’s Birthright and survivorship was additionally not perceived in the Muslim Law. All properties devolve by Succession under Muslim Law and the privilege of the heir apparent doesn’t come into existence till the death of the Ancestor. The Right of Succession opens just on the death of the Deceased. Whenever a Female acquires property then she takes her share absolutely and with no limitations. Prophet Mohammed expressed about the Succession under Muslim law: One ought to become familiar with the laws of Inheritance and instruct them to individuals for they are one portion of useful knowledge. The Succession under Muslim Law is a Unique Aspect. It is the standard law that holds succession to the property of an enunch and not Muslim Law.
The Muslim law of Inheritance gets its standards from four major sources of Islamic law which are: the blessed Koran, the Sunna for example the act of the Prophet, the Ijma example the consensus of the educated men of a community on a specific purpose of law and the Qiya, for example, the analogical derivations of what holds just and right and following the principles of God.
The Muslim Personal Law (Shariat) Application Act, 1937 is appropriate to non-testamentary succession, for example, succession without a will. In the case of Testamentary succession, when the deceased has made a will, the Muslim Shariat Law is applied to succession, as exercised by the Sunni and Shia Muslims.
Under Muslim law, there is no severe contrast between immovable or movable property and incorporeal or corporeal properties. Because of the absence of a property differentiation between properties, when a death occludes, under the Muslim law, all property owned by the deceased is dependent upon inheritance. Yet, although all the properties owned and possessed by the death are subject to be inherited, the part of property inheritable is resolved after appropriations like obligations and debts, will, expenses paid in the pace of a burial service are resolved and paid off. When these appropriations are made, the rest of the property would now be able to be disposed of by Inheritance.
General Principles of Succession under Muslim Law
Customary Law of Succession
- The nearest Male Agnate or Agnates Succeeded to the total exclusion of Remoter Agnates.
- Females and cognates were excluded from inheritance.
- The Descendants were preferred over Ascendants and Ascendants were preferred over Collaterals.
- Where there are more than 1 male agnates of the same degree then all of them inherit the property equally. That is taking per capita.
Islamic Principles of Succession
- The Couple that is the husband and wife are equal and they are entitled to inherit from each other.
- Near females and cognates are also being recognized and enumerated as heirs.
- Parents and specific ascendants are made heir even when there are descendants.
- The newly created heirs that were not entitled to inherit under customary law are given particular or specified shares.
- The newly created heirs inherit the specified shares with the customary heirs and not to their exclusion.
- After the allotment of particular shares to the sharers is done the residue goes to the customary heirs who are known as residuary.
Important Definitions
- Agnates– It is a relation that is related to the deceased completely through males. For example son, son’s son, etc.
- Cognates- It is a relation that is related to the deceased completely through one or more females. Such as daughter,s daughter, etc.
- Collaterals- They are descendants in the parallel lines from a common ancestor or ancestress. They may be cognates or agnates. Such as paternal aunt and uncle.
- Heir- An individual who is entitled to inherit the estate of another after his death.
- True Grandfather- A male ancestor between whom and the deceased no female intervenes .such as father’s father etc.
- False Grandfather- A male ancestor between whom and the deceased a female intervenes. Such as the mother’s father etc.
- True Grandmother- female ancestor between whom and the deceased no false grandfather intervenes. Such as the father’s mother etc.
- False Grandmother- A female ancestor between whom and the deceased a false grandfather intervenes. Such as Mother’s father’s mother etc.
- Son’s son how lowsoever- Lineal Male descendants such as son’s son etc.
- Son’s Daughter how lowsoever- Female children of Lineal Male descendants. Such as a son’s daughter etc.
Sunni Law of Succession
Various Types of Heirs
Heirs are referred to as essential heirs and they are constantly qualified for a share of the inheritance,
they are never totally excluded. These essential heirs comprise of the life partner relict, both parents, the daughter, and the son. However, in specific situations, different heirs can likewise inherit as residuary, in particular the father, paternal grandfather, agnatic daughter granddaughter, full sister, consanguine sister, and mother. The individuals who inherit are ordinarily
Limited to Three Groups:
1. Quota Heirs beneficiaries (dhawu al-farā ), ordinarily incorporate daughters, parents, grandparents, a couple/spouses, brothers and sisters, and others. This group generally take an assigned share or quota of the estates.
2. Individuals from the Asaba (residuary), generally a blend of male and female) family members that inherit as residuary after the shares of the Quota-heirs has been distributed.
3. If an individual leaves no immediate family members and there is no u aba, his property ʿ ṣ escheats to the state depository (Bayt al-mal),
Sharers
The Sharers are 12 in number and are as per the following:
(1) Husband
(2) Wife,
(3) Daughter,
(4) Son’s Daughter
(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 every sharer will change in specific conditions. For example,
➢ a Wife takes ¼th of the share for a situation where the couple is without lineal descendants and a one-eighth share in any case.
➢ A Husband (on account of succession to the wife’s property) takes a half share for a situation where the couple is without lineal descendants, and a one-fourth share otherwise.
➢ A sole daughter will take half share. Where the deceased has left behind more than one girl, all girls together take 2/3rd of the share.
➢ If the deceased had left behind a son(s) and daughter(s), the girls stop to be sharers and become residuary all things being equal, with the residue being so distributed as to guarantee that every son gets double of what every girl gets.
Birth Right
Any child naturally introduced to a Muslim family doesn’t get his entitlement to property on his introduction to the world. Indeed, no such individual turns into a legal heir and subsequently holds no privilege even after the death of the ancestor. If an heir lives even after the death of the ancestor, he turns into a legal heir and is in this way qualified for a share in the property. Nonetheless, if the apparent heir doesn’t survive his predecessor, then no such right of inheritance or share in the property shall exist.
Rule of Distribution
Vesting of property happens on the death of the propositus. Under Muslim law, the distribution of property can be made in two different ways, firstly per capita or strip dispersion. Per – Capita dissemination technique is significantly utilized in the Sunni law.
As indicated by this technique, the estate left over by the ancestors gets similarly distributed among the heirs. Subsequently, the share of every individual relies upon the number of heirs. Subsequently, the share of every individual relies upon the number of heirs. The heir doesn’t represent the branch from which he inherits.
Widow
Under Muslim law, no widow is excluded from the succession. A childless Muslim widow is qualified for one-fourth of the property of the deceased husband, after meeting his burial service and legitimate costs and obligations. Notwithstanding, a widow who has children or grandchildren is qualified for one-eighth of the deceased husband’s property.
Case Laws
In Hakim Rehman versus Mohammad Mahmood Hassan[1], it was held that upon the death of a Mohammedan, the entire estate devolves upon his heirs at the moment of his death and the heirs succeed to the estate as tenants in common explicit shares.
In Rukmanibai versus Bismillavai[2], it was held that where an individual, who has converted over to Islam, dies leaving behind his only daughter and no residuary, will be qualified for her share only as a residuary share in the property of the deceased.
Shukurllah versus Zohra Bibi[3] it was held that every heir of the Mohammedan is at risk for the obligation of the deceased to the degree only of a share of the obligations proportionate to his share of the estate
Grounds of Disqualifications
Preclusions which suspend the Heirs to succeed the property of the intestate are—
Killer or Murderer
Under the Sunni Law, an individual who has caused the death of another, regardless of whether intentionally,
or then again unintentionally, negligence, or accident, is suspended from succeeding to the estate of that
other. Crime under the Shia Law isn’t a bar to succession except if the death was caused intentionally.
Illegitimate Children
Under the Hanafi School, an illegitimate kid isn’t qualified for inheritance. Such a kid can’t acquire from his/her dad however can acquire from his/her mom and all family members of the mother. The mother can likewise inherit the property of her illegitimate youngsters.
Child in the womb
A child in the womb of its mom can inherit only if he is brought into the world alive. A child in an embryo is viewed as a living individual and, accordingly, the property vests in that child. if such a child in the womb isn’t brought into the world alive, the share previously vested in it is
divested and, it is assumed as though there was no such heir (in the womb) by any means.
Difference of Religion
A non-Muslim couldn’t inherit from a Muslim however the Caste Disabilities Removal Act of 1850 does away in India with the avoidance of a non-Muslim from the inheritance of the property. If a non-Muslim acknowledges Islam, and afterward dies, the Act of 1850 can’t warrant the application of his change law of succession to his property; the Muslim Law will apply in such a case. Where a convert to Islam died leaving behind a daughter, as against the
the claim of his non-Muslim relatives her daughter would be given all her father’s property – ½ share as her share as Quranic heir and the remainder by the method of return.
Where a Muslim registers his marriage under the Special Marriage Act of 1954, he stops to be a Muslim for objectives behind an inheritance. In like manner, after the death of such a
Muslim his (or her) properties don’t devolve under Muslim law of Inheritance. The Inheritance of the properties of such Muslims is administered by the provisions of the Indian Succession Act, 1925, and the Muslim law of inheritance isn’t appropriate.
Escheat
Where a Muslim who died and he has no legal heir under his law, his properties are inherited by Government through the process of escheat. The state is viewed as a definitive heir of deceased persons.
CONCLUSION
The Holy Quran states ‘Allah has bought from devotees their people and their wealth in lieu of Jannah’. Man is a trustee of the abundance that he owns for the duration of his life. When the term of his term ends, his trusteesh
his trusteeship over his wealth and property terminates. After his death, his property ought to be reallocated by the directions given by Allah Taala. Mandates concerning the appropriation of wealth and property of the expired after his death are given under the Holy Quran. There are Laws relating to the appropriation of wealth among heirs, so heirs don’t fight and Guaranteeing that an equitable framework can be established and wealth isn’t accumulated into a single entity. Separate the grouping of wealth and dispersion of wealth in the society. Break up and Consolidate a strong family framework by justly distributing wealth among the heirs Respect the Right of ownership for the person that he acquired through the legal methods and it doesn’t permit the individual or government to seize the property after his demise. Provide peace of mind that after your demise, your family will be given the right of inheritance. Special focus is given to women’s rights of inheritance as the women are denied their privileges under different frameworks.
[1] Hakim Rehman versus Mohammad Mahmood Hassan, AIR 1957 Pat 559.
[2] Rukmanibai versus Bismillavai, AIR 1993 MP 45.
[3] Shukurllah versus Zohra Bibi, AIR 1932 All. 512.
Latest Posts
- Job opportunity at EXO Edge, Sahibzada Ajit Singh Nagar, Punjab, India: Apply Now!!
- Internship opportunity at Vishwas Advisors, Kalyan, Maharashtra, India: Apply Now!!
- Internship opportunity at Kulfi Collective, Mumbai, Maharashtra, India: Apply Now!
- Job opportunity at The Neotia University, Diamond Harbour, West Bengal, India: Apply Now !!
- Job opportunity at Morgan Stanley, Mumbai, Maharashtra, India: Apply Now!!
- Job opportunity at VISA INTELLIGENCE CONSULTANCY LLP, New Delhi, Delhi, India: Apply Now!!
- Job opportunity at Amazon Web Services (AWS), Gurugram, Haryana, India: Apply Now!!
- Job opportunity at Stelcore Management Services Private Limited, Mumbai, Maharashtra, India: Apply Now!!
- Job opportunity at Zscaler, Sahibzada Ajit Singh Nagar, Punjab, India: Apply Now!!
- Job opportunity at Irish Expert, Delhi, India: Apply Now!!
- Job opportunity at UnitedLex · Gurgaon, Haryana, India: Apply Now!
- Internship opportunity at Vineforce · Nabha, Punjab, India: Apply Now!!
Archives
