Inheritance and Succession Under Muslim Law

This article is written by Akshat Mehta, a student at the Institute of Law, Nirma University, Ahmedabad, Gujarat.

In this research article, the author has tried to focus on Principles of Inheritance and Succession under Muslim Law by analyzing landmark Supreme Court cases which contributed towards development and amendment of Muslim Law. In this article, he has precisely focused on 8 general principles of Inheritance under Muslim Law.

Inheritance and Succession Under Muslim Law

Marriage, adoption, Inheritance, and Divorce in Hindu Law is almost similar to Christian Law, but in Muslim Law all these events are governed according to Shariat Kanoon or Muslim Personal Law or Muslim Marriages Act, 1939.[1] Events such as marriages and divorce under Hindu’s are regulated through Hindu Marriage Act, 1995, and for this sake Hindu includes Sikh’s, Jain’s, and Buddhist’s.[2] As per Section 2 of the Hindu Marriage Act, 1955, Marriages among Jain’s, Buddhist’s and Sikhs are covered under the said act because they are Hindu’s irrespective of caste and creed.[3] When we specifically talk about Inheritance in Muslims, then it is much more different than Hindu Law or any other Law. In addition to this, Principles of Inheritance in Muslims also differs as per the different sects of the community such as Shia, Sunni, and Ahmadis.

INTRODUCTION

The Principles of Succession and Inheritance under Muslims is regulated according to the Muslim Personal Law (Shariat) Application Act, 1937.[4] Furthermore, Muslim Law of Succession comprises of four sources of Islamic Law i.e. The Quran, The Sunna (aka practice of the prophet), The Ijma (which means the common assent of learned and prominent people of the community on what should be done in any particular issue) and The Qiya (more like natural law school of jurisprudence which tells what is right and wrong as per the God).

In addition to this Muslim Law adores two types of heirs.[5] These are:

1. Sharers: Sharers are the ones that have the right to a certain share in the property of the deceased. Wife, Husband, Paternal Grandfather, Father, Daughter, Mother, Full sister, Consanguine sister, Uterine brother, Grandmother on the male line, Daughter of a son (or son’s son or son’s son and so on), and Uterine sister is defined as Sharers under Muslim Law.

2. Residuaries: After the distribution of the deceased person’s property among the sharers, the residuary property will be shared by Residuaries.

Landmark Cases

There are two landmark cases which either evolved or amended some principles of Inheritance in the form of maintenance under Muslim Law. These are:

1. Imambandi v. Mutsaddi (1918): This was a Bombay High Court case in which the property in dispute was claimed by three widows of a single Muslim husband, who died intestate. One of his widow wives claimed that as she is the mother of the child and hence being the legal guardian of the child, she was entitled to the property belonging to her child. The issue, in this case, deals with the Guardianship and bifurcation of the property based on Guardianship. The Honorable Court held and reaffirmed the Muslim Law narrative that a man is a sole, only and actual guardian of a child and the mother of the child will not be termed as a guardian of a child even if the death of her husband occurs. In case of the death of the father the guardianship of a child will automatically turn towards its grandfather and after him the brother of the father (i.e. the uncle of the child). So in this case, it was reaffirmed that the wife cannot claim the property by claiming that she is the natural guardian of the child.[6]

2. Noor Sabba Khatoon v. Md. Quasim (1997): This case deals with the rights of a child born out of Muslim marriage after the divorce of his/her parents. The Honorable Court held that a child is entitled to maintenance from his father under Section 125 of CrPC[7] and also under the provisions of Muslim Woman (protection of rights on divorce) Act, 1986.[8] The Court further held that a Muslim man is liable to maintain and flourish his son until he attains the age of majority and in the case of a daughter a Muslim father is liable to give maintenance to his daughter until she gets married.[9]

Principles of Inheritance under Muslim Law

Here, we’ll discuss some of the main principles of inheritance under Muslim Law which is different from other Laws.

1. Distribution of Property: Distribution of property under Muslim Law is done on two bases i.e. Per Capita basis and Per Strip basis. Let’s see each of them separately:[10]

a) Per Capita basis: This is commonly practiced among Sunni Muslims. As per this, the property of ancestor is distributed among the heirs according to the number of heirs in the family. Ultimately the number of heirs decides each person’s share in the property of the ancestor. The branch of family doesn’t play any role in Per Capita distribution.

b) Per Strip basis: This is mainly followed by the Shia sect of the Muslim community. As per this, the property of the ancestor is distributed among the branch (strip) of a particular family. So the distribution of property under Per Strip mechanism depends upon the quantum branch and the number of people living in one specific branch.

2. Testamentary and Non-Testamentary Succession: The Muslim Personal Law (Shariat) Implementation Act, 1937, is applied in Non-testamentary succession. On the other hand, in the case of a person who dies after creating his will, the succession in this the case is governed, as applicable to the Shia and the Sunni, under the relevant Muslim Shariat law.

In cases, where the property matter is an immovable property located in West Bengal, Chennai and Bombay, the Muslims are bound by the Indian Succession Act, 1925.[11] That exception is for testamentary succession purposes only.[12]

3. Birth Right: “Janmaswatvad’s” theory of Hindu inheritance law finds no place in Muslim inheritance law. In Muslim law, the issue of inheritance of property comes only after a person’s death. Any child born into a Muslim family on his birth does not have his right to claim the estate. Indeed, no such person holds is a legal heir and thus has no right until the ancestor’s death. When an heir survives long after the ancestor’s death, he is a legitimate heir and thus has the right to a share of the wealth. Nevertheless, if the apparent heir does not survive his ancestor, then there shall be no such right to inherit or share in the land.[13]

4. Doctrine of Representation: The Doctrine of Representation is widely and commonly followed in Roman, English, and Hindu Law, but it doesn’t get any space in Muslim Law. As per this doctrine the son of an erstwhile son is to represent his father for the Inheritance or Succession. Under Muslim Law, the nearer heir totally eliminates the remoter heir form taking succession over the estate of the deceased person.[14]

5. Marriage of Muslim as per the Special Marriage Act, 1954:[15] Under the Special Marriage Act, 1954 people from two different religions can marry each other. Muslim Law doesn’t permit Muslims to get married according to the said Act and if a person gets married under the said act then he/she will not be considered as Muslims and are not entitled to Succession or Inheritance as per the Muslim Law.[16]

6. Right of Females in Inheritance: In Muslim Law, Males and Females have the same rights in lieu of inheritance. So male and female both share equal rights in case the death of Muslim occurs but, in Muslims Males have the preferential right over woman’s to inherit the property and also males generally have a double share of property over females under Muslim Law.[17]

7. Rights of Step-Children: Step-Children do not have any such rights to inherit the property of their deceased Step-Parents and also Step-Parents don’t have any right to claim the property of their Step-Children, if in case their Step-Children die earlier and they possess some property.[18]

8. Rights of a Widow: Widows are entitled to claim one-fourth of the property of her deceased husband after meeting of all debts, expenses and funeral costs but if Widow woman has any children or grandchildren, then she is entitled only for the one-eighth share of the property of her husband as per the Muslim Law.[19]

[1] Dissolution of Muslim Marriage Act, 1939, No. 45 Act of 1939.

[2] The Hindu Marriage Act, 1995.

[3] The Hindu marriage Act, 1995, § 2.

[4] The Muslim Personal Law-Shariat Application Act, 1937.

[5] Advocate Chikirsha Mohanty, Inheritance under Muslim law (June 19, 2019), https://lawrato.com/indian-kanoon/muslim-law-law/inheritance-under-muslim-law-599.

[6] Imambandi v. Mustsaddi, (1918) 20 Bom. L. R 1022.

[7] Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, § 125.

[8] The Muslim Woman (Protection of Rights on Divorce) Act, 1986.

[9] Noor Sabba Khatoon v. Md. Quasim, AIR 1997 SC 3280.

[10] Mitul Singh Thakur, Principles of Inheritance under Muslim Law (May 12, 2020), https://www.legalbites.in/inheritance-under-muslim-law/.

[11] The Indian Succession Act, 1925.

[12] Advocate Chikirsha Mohanty, Inheritance under Muslim law (June 19, 2019), https://lawrato.com/indian-kanoon/muslim-law-law/inheritance-under-muslim-law-599.

[13] General Principles of Inheritance under Muslim Law – Rules relating to Islamic Inheritance (July 21, 2014), https://www.slideshare.net/hanifmulia/general20-principles20of20inheritance20under20muslim20law.

[14] Harsha Asnani, What are the Rules Governing Inheritance of Property under Muslim Law (May 17, 2016) https://blog.ipleaders.in/rules-governing-inheritance-property-muslim-law/.

[15] The Special Marriage Act, 1954.

[16] Pragati Ghosh, 13 General Principles of Inheritance under Muslim Law in India, https://www.shareyouressays.com/knowledge/13-general-principles-of-inheritance-under-muslim-law-in-india/117457.

[17] The Muslim Law of Inheritance ( June 29, 2018), https://medium.com/@legalresolved/the-muslim-law-of-inheritance4ac8866ab490#:~:text=The%20Muslim%20law%20of%20inheritance%20derives%20its%20principles%20from%20four,deductions%20of%20what%20holds%20just.

[18] Mitul Singh Thakur, Principles of Inheritance under Muslim Law (May 12, 2020), https://www.legalbites.in/inheritance-under-muslim-law/.

[19] Advocate Chikirsha Mohanty, Inheritance under Muslim law (June 19, 2019), https://lawrato.com/indian-kanoon/muslim-law-law/inheritance-under-muslim-law-599.

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