Summary: An analysis of the Muslim law of inheritance and how property is given to the sharers and residuaries upon the death of an ancestor.
The Muslim law of succession and property derives itself from the religious texts sacred to the specific religion namely, the four different Islam law sources and these have been used to create these rights for both men and women under this law. This includes the Holy Quran, the Sunna, which is also known as the practice which had been derived from the prophet himself, the Ijma, which comprises of the collective consensus of all the learned men within the community who preside over decisions pertaining to any specific aspect and then the Qiya which is known as a conclusive and scientific deduction of right from wrong as can be deciphered from the principles provided by God as per the Muslim religion.
Moreover, under Muslim law, exactly two different kinds of heirs are recognized which can be categorized as Sharers and Residuaries. While Sharers refers to the individuals who have an entitlement towards certain property of the deceased, Residuaries refers to those individuals who shall be entitled to the property which is left behind after the entitlement of property to the Sharers.
Moreover, The Muslim Personal Law (Shariat) Application Act, 1937 is applicable in case of non-testamentary succession which means succession in the absence of a will. And for testamentary succession, which is when the deceased has made a will, the Muslim Shariat Law is applied for the same, as practised by the Sunni and Shia Muslims.
However, it is important to note that, in case of testamentary succession for immovable property which is particularly located in the state of West Bengal or a property which falls within the jurisdiction of the Bombay and Madras High Courts, the succession is conducted as per the Indian Succession Act, 1925.
Below is a further explanation on the heirs under Muslim Law:
Property whch divulges to the Sharers:
- There are a total of twelve sharers which comprise of the following:
- The Husband.
- The Wife.
- The Daughter.
- Any daughter of a son (or son's son or son's son and so on).
- The Father.
- The Paternal Grandfather.
- The Mother.
- The grandmother on the male line.
- Full sister.
- A consanguine sister.
- A uterine sister.
- A uterine brother.
- It is important to learn that the share acquired by each respective sharer varies depending on certain specific conditions. For example, a wife is entitled to 1/4th of the share in a situation wherein a couple does not have any lineal descendants whereas in other instances the share is equivalent to one-eighth. However, the husband (in the case of succession to the wife's estate) would be entitled to acquire half the share under a situation wherein there exist no lineal descendants and one fourth of the share in case they do. In case of a sole daughter, she would be entitled to half the share and under a situation wherein the deceased has left behind more than one daughter, then every daughter is entitled to jointly acquire two-thirds of the share in the property.
The different kinds of succession as per Muslim Law:
- Now, in a situation wherein the deceased has left behind one daughter and one son, then in that situation, the daughters will not be given the right is a sharer but a residuary instead, acquiring the residue left after the sharer has acquired his share of the property. This is done to ensure that the son shall always acquire double the property than that which goes to the daughter or daughters.
- There are two different ways in which succession occurs under any law for any estate or property. This is known as testamentary succession and non-testamentary succession.
- Under a non-testamentary succession, the Muslim Personal Law (Shariat) Application Act, 1937 shall be applicable. However, on the other hand in case an individual has died after the creation of a valid will, then the inheritance under this situation shall be governed under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis respectively.
- If in a situation, the subject matter in question is that of immovable property which is located within the states of West Bengal, Chennai and Bombay, the Muslims shall be bound under the Indian Succession Act, 1925. However, this exception exists only under situations of testamentary succession.
- Several other rights conferred under Muslim Law depending on your position and relationship with the deceased has been explained further below:
Divulgiing property as per the birth right:
Under Muslim law, any inheritance of property occurs only after the death of an individual and not at any other occasion. This implies that no person under the Muslim law acquires any property in his or her name upon their birth. In case the heir lives even after the death of the ancestor, he becomes the next legal heir and is only then entitled to a share in the property. However, in a situation wherein such an heir does not survive his ancestor, then no such right of inheritance or share in the property shall exist whatsoever.
Actual Property Distribution under Muslim Law:
There are two manners in which property can be divided under Muslim law, namely, through per capita distribution or through per strip distribution. Sunni law primarily uses the per capita distribution method and as per this method, the estate which has been left behind by the ancestors gets distributed equally amongst all the heirs. Thus, the share of each individual person depends upon the total number of heirs in question. However, under the per strip distribution method which is recognised under Shia law, the property gets distributed amongst the heirs according to the strip to which they belong. Therefore, the totality of the inheritance acquired by the individual completely depends upon the branch along with the total number of persons who belong to that branch.
Females and their rights to succession under Muslim Law:
Under Muslim law there exists no difference between the rights of men and women. Upon the death of any ancestor, there exists no impediment which could prevent either the girl or the boy to become the legal heirs of inheritable property. However, it has still been noticed that when it comes to the amount of property or the quantum of the share, the females usually receive half of that of the male heirs. The reasoning provided behind this is that under the Muslim law a female shall upon marriage receive the mehr and maintenance from her husband whereas males will have only the property of the ancestors for inheritance purposes. Also, males have the duty of maintaining their wife and children and thus must acquire more share than the females.
The rights of a widow under Muslim Law:
The Muslim Law does not exclude or deny the rights of succession to any widow. A childless Muslim widow is entitled to one-fourth of the property of the deceased husband, after meeting his funeral and legal expenses as well as the debts. However, a widow who has children or grandchildren is entitled to one-eighth of the deceased husband's property. In case a Muslim man marries during an illness and subsequently dies of the said medical condition without any brief recovery period or without consummating the marriage, his widow has no right of inheritance whatsoever. However, in case her ailing husband divorces her and later on dies from that said illness, the widow's right to a share of inheritance continues until she remarries after that.
The rights of a child in the Womb over the property:
Every child which is still in the womb is entitled to acquire his right of inheritance as long as such a child is born alive. A child in the embryo is regarded as a living person and thus, the property vests immediately in that child without any discrepancies. However, in cae the child in the womb is not born alive, the share that has already been vested in it shall get divested and it is then presumed that no such heir existed whatsoever.
Manner of resorting to â€œEscheatâ€ under Muslim Law:
In case a deceased Muslim individual has no legal heir under Muslim law, his properties are inherited by the Government through a process of escheat.
The provisions for Marriage under the Special Marriage Act, 1954:
In case any Muslim individual contracts his marriage under the Special Marriage Act, 1954, he ceases to be a Muslim for the purposes of inheritance and thus accordingly, after the death of such a Muslim his or her property does not devolve under Muslim law of inheritance. The inheritance of the properties of such Muslims is governed within the provisions of the Indian Succession Act, 1925.
#tags: Indian succession act, Muslim Shariat Law, Muslim law, Muslim personal law, testamentary, will, property, estate