MUSLIM LAW OF INHERITANCE

There is no codified law governing  the  rules  of inheritance  in Muslim society. Therefore, in Islamic  system inheritance  is basically  governed  by the shariat  law. In Muslim  law, inheritance  of property  comes  only after the death of a person and the child does  not get this  right from his birth itself. If the heir lives after the death of ancestor, he becomes legal heir and entitled to get share in property  but if he does  not survive  then  no such right of inheritance in property exist. The estate of a deceased  Muslim devolves on his heirs separately and the heirs are entitled  to hold the property as tenants-in-common.(1).

Under Muslim law of inheritance two types of heirs are recognized  i.e; Sharers and Residuaries. Sharers are those who are entitled to a portion of the deceased’s property, whereas residuaries would take over  the  portion of the property that remains after the sharers have taken theirs.

The principles laid down under Muslim law of inheritance a Mohammedan cannot bequeath more than one third of his property and even with regard to that one third he cannot bequeath it to his heirs. It is also clear that bequest in excess of one third of estate cannot take effect unless such bequest is consented by heirs after the death of the testator.

KEY FEATURES OF INHERITANCE UNDER ISLAMIC SYSTEM :-

1. Inheritance of property comes only after the death of a
2. After the death of person the legal heir are entitled to get share in
3. Shares of each legal heir are definite and know before actual
4. Legal heirs inherit only specific and definite shares which devolve upon them immediately on death of original owner .
5. Child in womb is competent inherit the property if he/she is born[2]
6. A Muslim person can also bequeath his property through
7. A Muslim can bequeath only one third of his assets through
8. A bequest through will in excess of  one  third  is  rendered valid  by the consent of the heirs whose rights are infringed thereby or where there are no heirs at all
9. That bequest in excess of 1/3rd cannot take effect, unless the heirs consent thereto after the death of
10. Law of inheritance doesn’t make any distinction between movable – immovable
11. Concept of joint family property and ancestral property does  not
12. Where Muslims have no legal heir his properties are inherited by the government through the process of
13. Where Muslim Contracts his marriage under Special Marriage Act, 1954, he ceases to be Muslim for purpose of The inheritance of such Muslim Indian Succession Act, 1925.
14. A Muslim is disqualified to inherit the property if he is causes the death of
15. An illegitimate child is unable to inherit the property of
16. Under Muslim law of inheritance parents are also entitled to inherit the
17. A non-Muslim is excluded from inheriting the property

IMPORTANT  FEATURES OF INHERITANCE WITH RESPECT TO FEMALE

1. The females are competent to inherit the
2. Normally the share of female is half of the share of
3. Widow’s right of inheritance continues until she
4. A childless Muslim widow is entitled to one-fourth of the property of the deceased
5. Widow who has children or grandchildren is entitled to one-eighth of the husband’s
6. Muslim personal law entitles son double share than
7. Widow’s right of inheritance continues until she remarries of inheritance continues until she
8. Widow’s right of inheritance continues until she remarries of inheritance continues until she
9. The widow has no right of inheritance If a Muslim man dies of the medical condition without consummating the
10. Mother is entitled one-third share of deceased son’s property if he dies without children.
11. Mother is entitled one-sixth share of deceased son having
12. In Muslim personal law entitles son double share than
13. An illegitimate child is competent to inherit the property of

SCHEME OF INHERITANCE

THE SUNNI LAW OF INHERITENCE:

A. In the is school the legal heirs are categorized in three classes:

1. Sharers– There is twelve numbers of shares  and whose shares are Notably eight are woman.
2. Residuries- Heirs who have no such fixed shares and take the residue or whatever left after the
3. Distant Kinder- Other relatives of the deceased who can inherit in absence of shares and residuaries

Note- Sharers and residuaries can inherit at the same time.

Distribution of property under Sunni law school-

1. Husband– Inherits ½ if there in absence of child otherwise gets ¼.
2. Widow/Wife- Takes 1/4th of estate if deceased has not left behind a child or an eligible lower descendant – otherwise she takes 1/8th of it. If the deceased died leaving behind two or more lawfully wedded wives, they will have to divide among them equally the share of a single wife.
3. Mother– Mother of the deceased always inherits 1/3rd if the deceased has not left behind a child or an eligible lower descendant – otherwise she takes 1/6th of

Note- If the deceased has not left behind any child or eligible lower descendant, but there is the spouse and the father of the deceased, the mother takes 1/3rd of the estate minus the fixed share of the spouse.

4. Grand-mother- A paternal grandmother Inherits only in the absence of both parents of the deceased and takes a 1/6th

If the mother of the deceased has not survived him but maternal grandmother is surviving she inherits as a Class I heir and takes 1/6th of the estate.

5. Father- If the deceased has left behind a child or eligible lower descendant, the father inherits as a Class I heir and takes 1/6th share of the If there is no Class I heir entitled to inherit, the father takes the entire heritable property of the deceased.

6. Grand- father- Inherits in absence of father and children he is a But in presence of children he gets 1/6.
7. Daughter – the share is 1/2 . if there are 2 or more daughters the share is 2/3 to be divided among them. In presence of son the daughters are treated as
8. Son’s daughter – he inherits in absence of 2 or more daughters, son, son’s son, son’s daughters of deceased. In this situation she inherits 1/2 if she is a single daughter and 2/3 if more than one. In presence of son’s son she treated as
9. Full- sister- the share of full sister is 1/2 . if there are 2 or more share will be 2/3. In presence of brother, she becomes a A sister is excluded in presence of child, child of son, father and father,s father.
10. Consanguine sister- the share is ½ if they are more than one 2/3 will be divided equally among them. In presence of full sister she gets 1/6. In presence of Consanguine brother she inherits as residuary. A    Consanguine sister is excluded from inheritance in presence of child, child of son, father, father’s father, 2 full sisters, and full brother.

11. Uterine brother- the share is 1/6 if there is 2 or more uterine brother they inherit Uterine brother is excluded in presence of child, child of son, father, and father’s father.
12. Uterine sister- the share is 1/6. If there is 2 or more uterine sister their share is 1/3. Uterine sister is excluded in presence of child, child of son, father, father’s

DISTRIBUTION OF PROPERTY UNDER SHIA LAW SCHOOL–

Under Shia law of school the heirs may be divided in 2 categories:-

1. Heir by marriage
2. Heir by consanguinity

RESPECTIVE SHARES OF HEIRS IN SHIA

8. Husband – he gets 1/2 in absence of children or lineal descendent other wise 1/4.
9. Widow– she gets 1/4 in absence of children or lineal descendent other wise 1/8.
10. Father– he inherits as residuary in absence of children or lineal descendent otherwise 1/6.
11. Mother– her share is 1/3 in absence of  child  or  lineal descendent, 2 or more brothers and sisters and 4 sisters with father otherwise she gets 1/6.
12. Daughter– she inherits 1/2 . In presence of 2 or more daughters 2/3 share is inherited They are residuary in presence of son.
13. Full- sister– she inherits 1/2 . In presence of 2 or  more  full sisters 2/3 shares inherited collectively. A full sister get share in absence of parents lineal descendent full brother and father’s father otherwise she is
14. Consanguine sister– she inherits 1/2 . In presence of 2 or more Consanguine sisters 2/3 shares inherited A Consanguine sister get share in absence of parents lineal descendent full brother, Consanguine brother, full sister and father’s father otherwise she is residuary.
15. Uterine brother– the share is 1/6. If there are 2 or more uterine brother then 1/3. They inherits share in absence of children,  and
16. Uterine sister– same as uterine

AN OVERVIEW ON MUSLIM LAW OF INHERITANCE BASED ON AFORESAID DISCUSSION

Muslims are governed by the Shariat Act, 1937 in which the share of female heir is half of the male heirs. Source of Shia-Sunni systems of inheritance is same but Sunnis accepted pre-Islamic system of agnate succession but Shias discarded it and adopted a new system. Until the person is died, nobody can claim property right merely because he is heir-apparent or heir-presumptive & law doesn’t make distinction between movable-immovable properties. Concept of self-acquired and ancestral property also does not exist. The doctrine of partial partition does not apply as they hold the land as tenants-in-common and not as co-sharers or join- tenants. The division is done by metes and bounds, where specific share of heirs is already determined by the law.

In Muslim law, inheritance of property comes only after the death of a person and the child does not get this right from his birth itself. If the heir lives after the death of ancestor, he becomes legal heir and entitled to get share in property but if he does not survive then no such right of inheritance in property exist.

A Mohammedan cannot by Will dispose of more than 1/3rd of the surplus of his estate after payment of funeral expenses and debts. That bequest in excess of 1/3rd cannot take effect, unless the heirs consent thereto after the death of testator.

The principles laid down with regard to bequeathing of property of a Mohammedan would clearly go to show that a Mohammedan cannot bequeath more than one third of his property and even with regard to that one third he cannot bequeath it to his heirs. It is also clear that bequest in excess of one third of estate cannot take effect unless such bequest is consented by heirs after the death of the testator.

Moreover, the quantum of the share of female heir is half of the male heir. A childless Muslim widow is entitled to one-fourth of the property of the deceased husband (after meeting his funeral and legal expenses and debts) but the widow who has children or grandchildren is entitled to one-eighth of the husband’s property.

If a Muslim man marries during an illness and subsequently dies of the medical condition without brief recovery or consummating the marriage, the widow has no right of inheritance.

If ailing husband divorces & afterwards, he dies from that illness, widow’s right of inheritance continues until she remarries.

In Muslim personal law entitles son double share than daughter. Mother is entitled one-third share of deceased son’s property if he dies without children but will get one-sixth share of deceased son having children. Thus, succession is based on orthodox mindset and patriarchal thinking and also against constitutional ethos of gender justice gender equality & dignity of women.

While the rule is that a Muslim can bequeath only one third of his assets, a bequest in excess of one third is rendered valid by the consent of the heirs whose rights are infringed thereby or where there are no heirs at all.

1. T. Ravi v. B. Chinna Narasimha (2017) 7 SCC 342
2. Tyabji; Muslim Law, IV,P 819.
3. Muslim Law,: R. K. Sinha ;