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Succession under Muslim Law

Succession under Muslim Law

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Property is something that everyone in this world seeks to acquire. Generally, a person acquires the property of his/her ancestors during or after their death through will/ by law. succession is nothing but the devolution of property on an heir or heirs upon the death of the owner[1]. when a person dies leaving his property/ asserts behind, the nearest and dearest individuals will inherit the said property. In order to regulate and administrate the dissolution process, there exist various laws governing various communities such as the Hindu Succession Act, 1956, the Indian Succession Act,1925. The succession under Muslim law is different from other succession laws and yet an uncodified law.

Succession under Muslim law:

The Muslim law of inheritance derives its principles from four sources of Islamic law, they are,

  1. the Holy Quran,
  2. The Sunna, 
  3. Ijma and 
  4. The Qiya. 

The deceased owner of the property is called the Propositus. If the propositus is a Sunni then Sunni law of inheritance will apply, if he is a Shia then Shia law applies[2].

Under Muslim law, there exists not much difference between movable or immovable property, and incorporeal or corporeal property, all properties owned by the deceased is subject to inheritance[3]. Only one distinction recognised by the Shia law is that a childless widow is not entitled to a share in the land belonging to her husband[4].

Under Muslim law there exists no joint family property or separate property. The institution of joint family is considered as foreign policy in Muslim law. The heirs of the deceased take their shares as a tenant in common, and not as a joint tenant with the rights of survivorship[5]. In the case of a joint business, the rules of the partnership will apply and the partnership would terminate on the death of one of the partners unless there is evidence to the contrary[6]. Even though all properties of the deceased person are subjected to inheritance, the disposition is done after satisfying debts, will, and expenses for the funeral. The heirs of Mahomedan can inherit all properties/ assets owned by his father and his ancestor after their death.

Customary Principle of Succession:

In pre-Islamic Arabia, the law of inheritance was based on Comradeship in- arms, and on this basis, even the wife and the children were excluded from inheritance[7]. In pre- Islamic law of succession, the property devolves upon the nearest male agnates or agnates succeeded to the total exclusion of remote agnates. Thus, if a Muslim man dies leaving behind a son and a grandson, the son inherits the entire property leaving grandson empty.

The descendants were preferred over ascendants while the distribution of property[8]. For example, in the presence of a son, the father could not succeed. And females were excluded from inheritance including wife, daughter, daughter’s daughter in the Pre-Islamic law of succession.

Objects underlying the Islamic scheme of Inheritance:

The Mahomedan law of inheritance is a most ingeniously contrived system, which deserves our admiration by its effectiveness in dealing with the most complicated problems of succession[9]. The objects underlying the Islamic scheme of inheritance are,

1st Object– 

The first and foremost object of Islamic law of inheritance is to ensure the closest persons (Dear and Near persons) of the deceased owner get a substantial part of the estate of the deceased. And no Mahomedan can dispose of more than 1/3rd of his total property/assets by making a will. The Muslim law restricts a Mahomedan from making a will that exceeds 1/3rd of his total property.

2nd object- 

The second object is protecting the heirs of the deceased person from unequal distribution of property. Meaning thereby, a Mahomedan cannot make a ‘will’ in favour of his own heirs. Such a ‘will’ is considered as void unless the other heirs provide consent to it. And such consent is to be acquired after the death of the testator (the person who makes a will), this is because no one has an heir while alive.

Under Shia law, the testator is free to make a ‘will’ in favour of his own heirs up to 1/3rd of his total estate wherein there required no consent from other heirs.

3rd Object- 

The third object is that the heirs should be properly classified according to the degree of relationship to the deceased. According to Hanafi law, there are three classes of heirs, 1) Sharers 2) Residuaries and 3) Distant Kindred.

The sharers and residuaries are closer to the deceased person than distant kindred. Distant kindred would not receive any share if there are sharers and residuaries.

The Shia law does not recognise the category of distant kindred. They consider descendants of residuaries as residuaries and descendants of sharers as sharers.

Distribution of property under Muslim law

As per Muslim law, the property is distributed in two ways, 1. Per capita or 2. Per stirpes.

Per capita distribution:

This method of distribution is followed by Sunni Muslims. Where all heirs get equal share in the property, i.e., the number of heirs of deceased determines the amount of share for each heir in the property of the deceased[10].

Per stirpes:

This method is followed by Shia Muslims. As per method of per stirpes, the property of a propositus is distributed among the heirs of a branch (strip) of the family. And as per the family branch and the number of people in the family will determine the share in the property of the family members.

Illustration:

  1. ‘A’ is the father of ‘B’ and ‘C’. ‘B’ has two children ‘D’ and ‘E’ and ‘C’ has 1 child ‘F’.
  2. ‘A’ has a total assets value of 10,000 rupees. On the death of ‘A’, ‘B’ and ‘C’ will receive 5000 each (According to per stirpes). Now when ‘B’ and ‘C’ dies, the assets of rupees 5000 will be distributed among the members of their stripes. i.e., in B’s stripe, ‘D’ and ‘E’ will inherit 2500 each and in C’s branch, ‘F’ will inherit 5000.

Birthright:

Unlike the Hindu law, the child in the womb is not considered as an heir nor possess property rights. The question of inheritance of property in Muslim law comes only after the death of a person. No person in the family holds the right to the property until the death of the ancestor. If an heir lives even after the death of the ancestor, he becomes a legal heir and therefore is entitled to a share in the property[11]. But, if the child does not survive the ancestor, then no such right to inheritance or share in property shall exist.

Doctrine of Representation:

According to this doctrine, if during the lifetime of an ancestor, any of his legal heir dies, but his deceased son has a child who still survives, he shall become entitled to a share in the property as now they shall be representing their immediate generation[12].

This doctrine is widely followed in Roman, English and Hind law of inheritance but not in Muslim law. However, for the purpose of calculating the sharers of the heirs, more specifically, to determine the sharers of heirs to predeceased brother, predeceased sister, predeceased daughter and predeceased aunt, this doctrine of representation is practised in Shia law up to some extent.

For example,

  1. ‘A’ is the father of ‘B’ and ‘C’. ‘B’ has two children, ‘X’ and ‘Y’. ‘C’ has two children ‘M’ and ‘N’.
  2. If ‘C’ dies during the lifetime of ‘A’, then ‘C’ is excluded from right to inheritance and his heirs too. So, on death of ‘A’, ‘B’ will exclude ‘M’ and ‘N’ from having any right to inheritance over A’s property. But by applying this doctrine of representation, ‘M’ and ‘N’ will get right to inheritance by representing ‘C’. This means ‘C’ would receive one- half of A’s property and the other half would be shared by ‘X’ and ‘Y’.

What if a Muslim married under the Special Marriage Act, 1954?

If a Muslim married to a person who is other than Islamic under the Special Marriage Act, he/she will no longer be considered as a Muslim person for the purpose of inheritance. Which means the person married under the Special Marriage Act if dies, his/her property will not devolve as per Muslim law. Instead, the devolution of the property will happen as per the provision of the Indian Succession Act, 1925.

Criticisms:

The system of inheritance by Islamic is near perfection but the only problem with it is, it leads to fragmentation of the estate. when the properties are shared among sharers and residuary, there is fragmentation and agricultural holdings become uneconomical when they are split up in this way.

But Mahomedan follows a method called “pre-emption” whereby when one heir sells his share, the Co- heirs as co-sharers exercise a right to pre-emption. i.e., they can successfully assert a claim to purchase that property themselves. This prior claim would avoid strangers as co-owner and fragmentation of land.

The Succession under Muslim law deals with the dissolution of property among Muslims. As it is being an uncodified law, both people possessing Sunni and Shia have their own set of norms for distribution of property i.e., 1). Per capita and 2). Per stirpes respectively. The Succession under Muslim law is considered as mere perfection law with fewer flaws. However, when it comes to the distribution of property among heirs, there arise many problems which will be dealt with courts of law.

Endnotes

[1] http://www.britannica.com/topic/inheritance-law

[2] PROF. G.C.V. SUBBA RAO’S, Family law in India, pg.711

[3] http://medium.com/@legalresolved/the-muslim-law-of-inheritance-4ac8866ab490

[4] http://sg.inflibnet.ac.in/bitstream/10603/137137/8/08_chapter_03.pdf

[5] http://sg.inflibnet.ac.in/bitstream/10603/137137/8/08_chapter_03.pdf

[6] Syed Khalid Rashid, Muslim Law, pp 308-309

[7] http://www.Studocu.com?in?document/university-of-delhi/family-law-ii/lecture-notes/inestate-succession-under-muslim-law/4749799/view

[8] http://www.Studocu.com?in?document/university-of-delhi/family-law-ii/lecture-notes/inestate-succession-under-muslim-law/4749799/view

[9] PROF. G.C.V. SUBBA RAO’S, Family law in India, pg.716

[10] http://medium.com/@legalresolved/the-muslim-law-of-inheritance-4ac8866ab490

[11] http://www.google.co.in/amp/s/blog.ipleaders.in/rules-governing-inheritance-property-muslim-law/amp/

[12] http://www.google.co.in/amp/s/blog.ipleaders.in/rules-governing-inheritance-property-muslim-law/amp/

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Karthikeyan P

Student, Central Law College

Karthikeyan is a 3rd-year law student of The Central Law College. His areas of interest are IPR, contract law and constitutional law. He is an enthusiastic knowledge seeker and a hard worker. For any clarifications, suggestion and feedback you can reach him at spkarthikeyansuvi@gmail.com

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