Succession Under Muslim Law

INDIAN SUCCESSION ACT, 1925

Succession deals with the transfer of property after the demise of an individual. The regulation that deals with the inheritance of a property is known as law of succession.

In simple terms it relates to the mechanism through which the property of an individual is passed on to others, giving them the rights of ownership henceforth.

In matters of inheritance, Hindus and Muslims have always been governed by their respective personal laws but position of Indian Christians, Parsis, Europeans domiciled in India, Eurasians, Jews, Armenians and others, were obscure before 1865. Due to more rights being given to women in property under Indian Succession Act,1925, both Hindu and Muslim communities had revolted during the foundation of the Act which resulted in the exclusion had revolted during the formulation of the Act which resulted in the exclusion of application of ISA,1956 on Hindu’s and Muslim’s intestate succession. ISA, 1925 removed the confusion from the Indian legal system with respect to intestate succession of non-Hindus, including Muslims.

UNDER MUSLIM LAW

Any person who professes the religion of Islam, in other words accepts the Unity of God and Prophetic character of Mohammad is a Muslim he may be so by birth or by conversion when a person is born as Muslim.

Islamic law was actually a combination of several pre-Islamic customs and rules introduced by the Prophet .The Muslim Law of Succession is a combination of four sources i.e. the Holy Quran, Sunna (practice of prophet), Ijma, (Consensus of the learned men of the community over the decision over a particular subject matter), Qiya (deductions based on analogy on what is right and just in accordance with good principles).

Under the Indian legislative scheme, the rules that govern inheritance under the Muslim law depend on the kind of property involved. The Muslim law does not make any strict distinction between any two or more type of properties such as movable and immovable, corporeal and incorporeal etc. Since there is no such distinction between different kinds of properties, therefore, on the event of death of a person, every such property which was within the ambit of ownership of the deceased person shall become a subject matter of inheritance. The amount of property that shall become the subject matter of inheritance and is made available to the legal heirs to inherit shall be determined after making certain appropriations. Such appropriations may include expenses paid in lieu of funeral, debts, legacies, wills etc. After making all these payments, the left over property shall be termed as the inheritable property.

Muslim law recognizes two types of heirs –

• firstly, sharers, the ones who are entitled to certain share in the deceased’s property
• Secondly, Residuaries, the ones who would take up the share in the property that is left over after the sharers have taken their part.

There are two types of Succession Testamentary Succession and Intestate Succession. In case of testamentary succession, Section 2(h) of the Indian Succession Act, 1925 defines ‘Will’ as the legal declaration of the intention of testator with respect to his property which he desire to be carried into effect after his death”.

A Will from the Musalman point of view is a divine institution, since its exercise is regulated by the Quran. It offers to the testator the means of correcting to a certain extent the law of succession, and of enabling some of those relatives who are excluded from inheritance to obtain a share in his goods, and of recognizing the services rendered by a stranger, or the devotion to him in his last moments. No formalities are prescribed by Muslim Law for a Will.

A Muslim Will may be oral or in writing. It must be a declaration of an intention to bequeath

If oral, it must, be made in the presence of at least two adult male Muslims as witnesses. Even a gesture, if the intention is sufficiently clear, would be enough. A Muslim Will is operative if

(1) Disposition is clearly intended to take effect after death of the testator; and

(2) The intention to give is clearly expressed.

A Muslim is not entitled to dispose of his property (which would otherwise devolve on his heirs under Muslim Law) by Will in favor of a person who is not a heir, in excess of one-third except in the following cases: 1) Where, subject to the provisions of any law for the time being in force, such excess is permitted by a valid custom;

 2) Where there are no heirs of the testator

3) Where the heirs existing at the time of the testator’s death, consent to such bequest after his death

 4) Where the only heir is the husband or the wife and the bequest of such excess does not affect his or her share.

In cases of Non testamentary succession, the Muslim Personal Law (Shariat) Application Act, 1937 gets applied. On the other hand, in case of a person who died with a testatement i.e. one who has created his will before death, the inheritance is governed under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis. The Property devolves upon Sharers and Residuaries.

The Sharers are 12 in number and are as follows: (1) Husband, (2) Wife, (3) Daughter, (4) Daughter of a son (or son’s son or son’s son and so on), (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 each sharer will vary in certain conditions.  For instance, a wife takes 1/4th of share in a case where the couple is without lineal descendants, and a one-eighth share otherwise. A husband (in the case of succession to the wife’s estate) takes a half share in a case where the couple is without lineal descendants, and a one-fourth share otherwise.  A sole daughter takes a half share. Where the deceased has left behind more than one daughter, all daughters jointly take two-thirds.

If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be sharers and become residuaries instead, with the residue being so distributed as to ensure that each son gets double of what each daughter gets.

Manner of Distribution

Under the Muslim law, distribution of property can be made in two ways, firstly per capita or per strip distribution. Per – Capita distribution method is majorly used in the Sunni law. According to this method, the estate left over by the ancestors gets equally distributed among the heirs. Therefore, the share of each person depends on the number of heirs. The heir does not represent the branch from which he inherits.

On the other hand, per strip distribution method is recognized in the Shia law. According to this method of property inheritance, the property gets distributed among the heirs according to the strip they belong to. Hence the quantum of their inheritance also depends upon the branch and the number of persons that belong to the branch.

Right of Females in inheritance of property

Muslim does not create any distinction between the rights of men and women. On the death of their ancestor, nothing can prevent both girl and boy child to become the legal heirs of inheritable property.

Rights of inheritance of a child in womb

Under Muslim Law, a child in the womb shall only be entitled to the share in property if he or she is born alive. In case if he is born dead then the share vested in him shall cease to exist and it shall be presumed that it never existed.

Rights of a childless widow and widow

Under the Shia law, a Muslim widow who does not have any children shall be entitled to inherit one – fourth share of the movable property belonging to her deceased husband. However, a widow with children or childless widow is entitled to one – eighth of the deceased husband’s property. In cases where a Muslim man gets married during a period when he is suffering from some mental illness and dies without consummating the marriage, the widow shall not be entitled to any right over her dead husband’s property.

Rights of the step children

The rights of the step children do not extend to inherit the property of their step – parents. However, the step brother can inherit property from their step sister or brother.

Escheat

In cases where a person dies without any heir then, the property of such a person shall go to the government. The state is considered as the ultimate heir of every deceased.

CASE LAWS

The Kerala High Court in,

Khuran Sunnath Society & Others vs Union Of India And Another

This Writ Petition filed as a Public Interest Litigation prays for the following reliefs:

“(a) To declare that the practice now followed by the Muslims based on Shariat, which is a Law under Article 13, in regard to inheritance of Muslim women is violative of Articles 14, 15, 19, 21 and 25 of the Constitution of India and therefore, void and unenforceable.

(b) To issue such other writs, orders or directions as this Honorable Court may deem fit and proper in the circumstances of the case.”

The High court dismissed a public interest litigation seeking a declaration that the Muslim personal law (Shariat) Application Act,1937, applicable in regard to the inheritance of Muslim women, violates articles 14,15,19,21 and 25 of the constitution of India. The high court dismissed the petition on the ground that the issues raised in the writ petition were for the legislature to frame laws and they could be adjudicated in the proceedings under writ petition i.e, article 226 of the constitution of India. The inferior position of women’s inheritance in traditional Islamic law does not appear to be justified.

A gradualist and subjective application of the Islamic principles of inheritance would result in equitable distribution between heirs.

In Yasin Imambhai Shaikh v. Hajarabi, AIR 1986 Bom 357: (1986) 1 Bom CR 5557: (1986) 2 Civil LJ 47, While the rule is that a Muslim can bequeath only one-third of his net assets, a bequest in excess of the one-third is rendered valid by the consent of the heirs whose rights are infringed thereby ; or where there are no heirs at all. 

In  Mariambai v. Hasam Ahmad, 24 Bom 8; the court held that  no formalities are prescribed by Muslim Law for a Will. A Muslim Will may be oral or in writing. It must be a declaration of an intention to bequeath.

The court in Mohd Iqbal& Ors Vs Mst. Najma & Ors held that the inheritance as a legal heir on the death of a person cannot be taken away under the Muslim law of inheritance in which all the legal heirs of the deceased are entitled to their shares.

 In Miran Baksh v. Mahir Bibi, it was posited that a declaration in a court of law by the testator of his intention of revoking a Will he had already made, was sufficient revocation of the Will, it was not necessary that he should destroy the Will or make another Will.