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. Under Muslim law, exactly two different kinds of heirs are recognized, which can be categorized as Sharers and Residuaries. This article discusses the succession under Muslim Law under its various tenets.
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:
The different kinds of succession as per Muslim Law
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.
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.
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 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.
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 case 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.
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.
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.
