UNIT 2: INHERITANCE- MUSLIM LAW

1. Muslim law can be divided into two parts: laws in Ancient Arabia (Customary law) and laws
after the advent of the Quran (Mohammedan law).
2. Quranic law recognizes females as heirs which were not there earlier.
3. Before the Quran it was a tribal, nomadic society and the concept of property and
succession was unknown.
4. Therefore, with respect to Ancient Arabic laws it was mainly movables as they were
nomadic. Mohammedan law has not completely discarded ancient Arabic law
5. Property is transferred by gift (Hiba); trust (Wakf); pre-emption (Shufa) and inheritance by
will (Wasiyat). All these kinds of transfers are dependent on one another some way or
another.
Ancient Arabic Laws
1. Concept of property was not as developed as it is today and there were constant wars
amongst tribes
2. Females were given no or little importance and polygamy was rampant and neither was
maintenance given.
3. When the Prophet arrived, he considered this situation and came up with law
4. Male agnates had their own importance and they were to take property after the death of
the propositus. This is because they fought wars. The reasoning was that only those who
fought wars must get property from those who died in wars.
5. Only male children could inherit their fathers property. Thus the females were not
recognized as heirs at all and no importance was given to marital relations and spouses
could not inherit each others property.
Quranic Laws
1. The Prophet tried to regularize the chaotic society as prevalent during the ancient Arabic
times.
2. The Quran gave importance to female persons and thus marriage also was given
importance.
3. The Quran talks of legitimacy and no sexual intercourse before marriage.
4. Female members of a family were regarded as heirs and spouses could inherit property
from each other.
5. Daughters, mothers and widows were also recognized as heirs and could inherit property.
6. Descendants as well as ascendants could inherit property.
7. The Prophet also considered the Ancient Arabic laws and did not completely discard them
but made changes to them with the help of Quranic laws. It continued to give importance
to male agnates.
Persons Entitled to Inherit Under Pre- Islamic Customary law
1. The nearest male agnate/s succeeded to the entire estate of the deceased
2. Females and cognates were excluded
3. Descendants were preferred to ascendants and ascendants to collaterals
4. When the agents were equally distant to the deceased, the estate was divided per capita

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Persons Newly Entitled to Inherit Under Quranic Law
1. The husband or the wife
2. The females as well as cognates
3. Parents and ascendants of the deceased even when there are male descendants
4. As a rule, the females share is one-half of the corresponding male relations share
Shia and Sunni Interpretation of the Quran Compared
1. The greater part of Inheritance laws are based on the Quran
2. The Quran did not sweep away the existing laws of succession but made amendments to it
3. The amendments have been differently interpreted by the Shia and Sunni schools
4. The Shias deduce certain principles which they consider underlie the amendments made in
the Quran and combine these with the principles of the pre-existing laws, thus raising a
completely altered set of rules
5. The Sunnis follow the pre-islamic principles to some extent as they stand, and they add or
amend those rules as mentioned in the Quran or by the Prophet
Concept of Joint Family under Mohammedan Law
1. Mohammaden law doesn’t speak of joint family property
2. The concept of family is also not recognized. It is based on the reasoning that one has
come alone to the world and shall go alone as well. Therefore, a person is responsible for
his own acts to God. One’s liabilities can be put on his son
3. Mohammedan law does not believe in rebirth either.
What is Property under Mohammedan Law
1. The term used for property is material. Both immovable and movable property is taken into
consideration and there is no distinction between the two.
2. There is no difference between ancestral and self acquired property
3. Succession opens only at the time of death.
What is Heritable Property?
1. Payment of certain charges: what is left by the Muslim upon his death after deducting the
following items is called inheritable property and it is this property that devolves on his
heirs. The items are
a) Funeral expenses
b) Expenses relating to Probate and Letters of Administration from the Court
c) Wages for personal service to the deceased within three months of his death
d) Debts
e) Legacies- subject to his limits of testamentary powers
2. Movable and Immovable property: heritable property includes both movable and
immovable property
3. Ancestral and self-acquired property- no distinction is made between the two nor between
real and personal property
4. No presumption as to joint family: there is no concept of joint family in Muslims and
neither is there anything like tenancy in common in Muslim law. Each heir has a definite
share in the property.

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5. When a person serves him in the last three months before his death, he can give such a
person a gift or hiba or marz-ul-maut. This is primarily because a gift cannot be given with
respect to immovable property. Hiba cannot be given with respect to all property.

GENERAL RULES OF SUCCESSION

1. When Inheritance Opens?
(i) The inheritance for the first time opens only upon the death of the person.
(ii) Before his death nobody can claim any share in the property on the basis of being the heir
apparent or heir presumptive.
(iii) A right by birth is unknown to Muslims.
(iv) When a wasiyat has been made, at the time of death such property shall be given to the
heirs
2. Inheritance is never in abeyance or absence of the heir, however an exception is made with
respect to a child in the mother’s womb under Hindu law but not under Muslim law.

RULES OF SUCCESSION UNDER MUSLIM LAW

1. RULE OF REPRESENTATION
i) It deals with who will be the heirs and the quantum of share one will inherit.
ii) According to Sunni law, one inherits only as per capita, i.e. according to individual claims
without regard to the branch they represent
2. RULE OF EXCLUSION
i) According to the rule of exclusion certain persons are excluded from inheriting the property
of another person due to certain impediments imposed on them by Muslim law.
ii) These impediments are known as the grounds of exclusion and a personal. They are:
a) Homicide: a person who causes the death of a person is not entitled to inherit the
property of that person, no matter whether the death was caused intentionally or
accidently.*
b) Illegitimacy: an illegitimate child is allowed to inherit the property of his mother but not
his father. *
c) Slavery: it is not applicable as there is an Abolition of Slavery Act. But in case of its
application, a slave cannot inherit property as he does not have property but a master
can inherit the property if any from a slave. *
d) Difference of Religion: the Quran states that a Muslim can only inherit property from a
Muslim. But this is not the case in India due to the Caste Disabilities Act.*
The above four (*) are rules for total exclusion.
e) Estoppel in Succession: if a person denies his relationship with the propositus, he
cannot subsequently claim inheritance when it opens.
f) Doctrine of Exclusion: this doctrine gives three rules which govern inheritance and
certain heirs by recognizing preferential claims of certain other heirs. ( Rules of partial
exclusion)
RULE 1: A person who is related to the propositus through another is excluded by the
presence of the other. For example, X has two sons, Y and Z. If Z dies, Y cannot claim his

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 share in Z’s property as his relationship with Z arises through their father X. Hence the
presence of X excludes Y
RULE 2: within the limits of each class of heirs, a heir nearer in blood excludes the more
remote. For example, A has a son S and a grandson G, S being nearer in blood will
exclude G.
RULE 3: A person excluded may exclude others.
g) Exclusion of daughters in some parts of the country for example J&K.
3. RULE OF PRIMOGENITURE: this rule basically gives preference to the eldest son amongst
several sons over the estate of the deceased father. This is not recognized by the Hanafi
school though is recognized earlier by the Hindus where the eldest son became the king.
4. RULE OF VESTED INHERITANCE: in Muslim law, property never remains in abeyance but on
death of the propositus passes onto his heirs. On the death of the person, there is vested
inheritance which is basically the vesting of property in the heir but the distribution will
take place after administration of estate. Therefore there are 2 stages: vesting of
inheritance and then distribution of inheritance.
Rights of heirs before distribution:
(i) the property will pass on the basis of vested interest
(ii) the heir may transfer his share to a bona fide purchaser for a value.
(iii) There will be no effect if there is a death of an heir before distribution
(iv) A vested right may be renounced
5. RULE OF SPES SUCCESSION: inheritance will only take place on the death of a person.
Before death the heir apparent has only spes succession i.e. only a mere chance of
succession. No heir can claim a right in the property while the person is still alive.

WHO IS ENTITLED TO INHERIT

1. The heritable property first goes to the relations of the deceased person, who on basis of
their preferential claim have been divided as follows:
a) Sharers: relations specifically fixed by the Quran i.e. parents and children how
lowsoever
b) Residuaries: who may succeed to the residue, if any, left after satisfying the sharers.
They don’t get any mixed share, it varies in accordance with the residue i.e.
grandparents how highsoever (true or false); brothers and sisters of the descendants
how lowsoever.
c) Distant Kindred: these are the relations that are neither sharers not Residuaries i.e.
paternal and maternal aunts and uncles how highsoever.
2. Theory of Propinquity
Propinquity means nearness in blood. The rule that nearer in degree excludes the more
remote applies only to the kindred of the same class. It is only applied partially.

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SUNNI LAW- INHERITANCE

The Possible Heirs and Successors

1. Primary Heirs or Relations by Marriage or Blood
(i) Sharers- 12 relations who have their prescribed shares
(ii) Residuaries or Agnatic heirs- they are all male agnates (descendants, ascendants or
collaterals) and 4 female sharers but maybe converted into Residuaries in some cases
(iii) Distant Kindred- it covers all other blood relations
2. Unrelated Successors
(i) Acknowledged Kinsman- is a person of unknown descent in whose favour the deceased has
made an acknowledgement of kinship, not through himself but through another.
(ii) Universal Legatee- is a person to whom the deceased had left his entire property to by will.
3. In absence of the above, the property of the deceased would escheat to the State or the
public treasury.

The Actual Heirs or Successors

All possible heirs cannot succeed at one time. Some have to be excluded by others. Therefore the
‘order of succession’ is as follows:
*the rules are separate for each class*
1. Sharers: some sharers are excluded by other heirs and some are converted to Residuaries.
2. Residuaries: there are 2 sets of rules of exclusion:
(i) Those which divide Residuaries into 4 classes and provide for some exclusion of some classes by
others.
(ii) Those which determine preference within each class
3. Distant Kindred: there are 2 sets of rules:
(i) Those which divide them into 4 classes and provide exclusion for some classes by others
(ii) Those who determine preference within each class.

Ground of the Right to Inheritance

1. Sabab or valid marriage, on the basis of which there are only 2 sharers: husband and wife.
2. Nasab or consanguinity which creates sharers by relationship and their number is ten
3. Wala, or fictitious relationship, which is a special case of inheritance.

Distribution of Property
1. Payment of funeral expenses, debts, legacies etc.
2. Allotment of shares or Quranic heirs to the sharers according to their respective shares as
stated in the Quran
3. The next is to divide the residue among the residuaries or the agnatic heirs
4. If there be neither sharers nor residuaries, it will be divided amongst the distant kindred.
5. The distant kindred will not inherit anything as long as there are any heirs under the
sharers or residuaries. Except when sharer is the wife or the husband of the deceased, then
the distant kindred will inherit with the sharer.
6. It is a rule of succession that the nearer relations exclude the more remote.

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Quranic Heirs
1. All heirs recognized by Quran, since they were recognized by the Quran or the Prophet,
they have priority over the other heirs.
2. Three conditions may arise while satisfying of the sharers claims:
(i) Their combined claim may be greater than the heritable property. In this case their shares
will be reduced proportionately, according to the doctrine of increase (Aul) i.e. the sharers
are actually proportionately decreased to bring it to unity
(ii) If their combined claim is equal to the heritable property, no difficulty will arise in the case.
(iii) Their combined claim may be smaller than the heritable property, residuaries come into
the picture. When there are no residuaries, in such case the residue is returned to the
sharers and distributed among them proportionately, according to the doctrine of return
(Rudd)
3. Quranic heirs cannot take the whole property if related by marriage but can take the whole
property when related by blood.
4. No Quranic heir has the right to administer the estate.
5. Who are the Quranic heirs:
(i) Wife
(ii) Husband
(iii) Daughter
(iv) Son’s daughter
(v) Full sister
(vi) Consanguine sister
(vii) Uterine sister
(viii) Uterine brother
(ix) Mother
(x) True grandmother (maternal and paternal)
(xi) True grandfather (maternal and paternal)
(xii) Father
For examples, please read page 380.
Agnatic Heirs
1. Residuaries or Agnatic heirs are those who get the residue share in the property if any is
left after the sharers claim is satisfied.
2. Their share depends on the residue left in each case.
3. Residuaries are divided into 4 categories:
(i) Descendants:
a) Son
b) Son’s son, how lowsoever
(ii) Ascendants:
a) Father
b) True grandfather, how highsoever
(iii) Descendants of father:
a) Full brother
b) Full sister

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 c) Consanguine brother
d) Consanguine sister
e) Full brother’s son
f) Consanguine brother’s son
g) Full brother’s son’s son
h) Consanguine brother’s son’s son
(iv) Descendants of true grandfather how lowsoever
a) Full paternal uncle
b) Consanguine paternal uncle
c) Full paternal uncle’s son
d) Consanguine paternal uncle’s son
e) Full paternal uncle’s son’s son
f) Consanguine paternal uncle’s son’s son

Illustrations on page 389

Distant kindred
1. Are relations by blood who are neither sharers nor residuaries
2. They are divided into the following 4 classes:
(i) Descendants of the deceased:
a) Daughters children and their descendants
b) Children of son’s, how lowsoever and their descendants
(ii) Ascendants of the deceased:
a) False grandfathers, how highsoever
b) False grandmothers, how highsoever
(iii) Descendants of parents:
a) Full brother’s daughters and their descendants
b) Consanguine brother’s daughters and their descendants
c) Uterine brother’s children and their descendants
d) Daughters of full brother’s sons, how lowsoever and their descendants
e) Daughters of consanguine brother’s sons, how lowsoever and their descendants
f) Sister’s (full, consanguine, uterine) children and their descendants
(iv) Descendants of immediate grandparents, true or false
a) Full paternal uncle’s daughters and their descendants
b) Consanguine paternal uncle’s daughters and their descendants
c) Uterine paternal uncle’s daughters and their descendants
d) Daughter’s of full paternal uncles son’s how lowsoever and their descendants
e) Daughter’s of consanguine maternal uncles son’s how lowsoever and their
descendants
f) Paternal aunts (full, consanguine or uterine) and their children and their
descendants
g) Maternal uncles and aunts and their children and their descendants and
descendants of remoter ancestors (how highsoever)

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SUBSIDIARY/ SECONDARY HEIRS
1. Mohammedan law generally recognizes blood relations and not artificial relations
2. Only when there are no primary heirs, one can appoint someone as subsidiary heirs. The
subsidiary heirs are:
(i) Successor by Contract: one who derives his right of succession under a contract with
the deceased
(ii) Acknowledged Kinsman: is a person of unknown descent in whose favour the
deceased has made an acknowledgement of kinship or relationship not through
himself but through another.
(iii) Universal Legatee or the Sole Legatee: is the person to whom the deceased has left the
whole of his property to by will. This can be done when there are neither heirs of the
first kind nor the abovementioned heirs of the second kind.
(iv) The Government: in absence of all the heirs, the property goes to the Government by
the operation of law. This law is known as the Law of Escheat. In Muslim law, this
property will fall into bait-ul-mal (public treasury) for the benefit of Muslims.

Rules of Shuffa or Pre-emption

1. If property is transferred by an heir, the co-heirs have a pre-emptive or first right to get
such property. It is a check on the introduction of strangers.
2. There cannot be a gift of immovable property.
3. If a person gives property on his death bed (3 months before death) to someone as a gift,
the heirs have a responsibility to give him the same before administration of estate.
Wakf or Trust
1. It is a religious or public trust.
2. If someone doesn’t have any heirs he may give his property for Wakf and the Wakf boards
will take over his property
3. He cannot ask the Board to maintain someone out of such property and cannot impose a
permanent burden on them
4. A Muslim woman can ask for maintenance from the Wakf Board.

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 UNIT 4- WILL AND CODICIL

1. Whenever there is a transfer of property in the lifetime of a person by an agreement, such

agreement is called a deed. A deed takes effect on the death of a testator
2. A will is with respect to the disposition of property which is made in the lifetime of a person
and comes into operation after the death of the testator.
3. It depends on the wish or the will of the person. It is called testamentary disposition.
4. One can make a will of property only of which he is the owner.
5. Registration of will is not compulsory. People prefer to transfer property this way as they
prefer not to pay stamp duty
6. Will is also the transfer of property but it is not under TOPA as TOPA covers only transfer of
property inter vivos.
7. Both movables and immovables may be transferred
8. Requirements of a Valid Will under the Indian Succession Act: (i) it has to be written or
typed, it cannot be an oral will. (ii) it is generally suggested to register the will. (iii) no stamp
duty is necessary.
9. Necessities:
(i) Always in first person: in other types of transfer there are always 2 parties. Here 2
parties are not required as the maker of the will always makes it in first person. The
person to whom the property is transferred is called the ‘legatee’ and the property
being transferred is called ‘legacy’.
(ii) Two witnesses are necessary for the will to be held valid. For convenience, those
who are likely to be alive after the death of the person making the will are generally
chosen as witnesses. It is not necessary for the witness to know the contents of the
will but he must be able to recognize the signature of the maker.
10. Probate is not necessary as such.
11. Under the Act, a person can make a will in favour of anyone, even a stranger.
12. In order to make alterations later on, one has to make a new will. Whatever is the last will
made by the person, whether registered or not, that will, will be considered
13. Codicil is something added, altered or explanatory to the will. Witnesses may not be
present. It is regarded as part of the will itself. For example, a doctor’s certificate attached
to a will on that particular day.
14. Renunciation of a will is also possible.

TYPES OF WILLS
I. Privileged Will
1. Sometimes it may be impossible to complete all such formalities of making a will due to
certain circumstances which one cannot avoid. Thus, he is given a privilege not to follow
such formalities and maybe excused.
2. For example, those in the armed forces may not be able to write the will in first person etc.
3. Principles with respect to Privileged Will:
(i) It may be oral before 2 witnesses but at the same time making a declaration with the
testamentary intention about the disposition of the property. If he is alive after a period
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 of one month, the previous will take effect and be valid only if he makes an unprivileged
will.
(ii) If it is written one, it is not necessary for it to be signed or attached by the witness. It is
to be written down in his own hand writing. If the body of will is written by someone
else, the signature is a must. Attestation may not be there.
II. Unprivileged Will
1. Requisites of a Will:
(i) The testator shall sign the will or he can affix his mark or it shall be signed by some
other person in his presence and by his description
(ii) The signature should be placed in such a way that it shall appear that it intended to give
effect as a will
(iii) The will shall be signed by two or more attesting witnesses. For the attestation, the
witnesses should sign in the presence of the testator. Therefore, both witnesses may
not be present at the same time and it is not necessary for them to see to that the
testator is executing the will.
WHO CAN MAKE A WILL?
1. A person making a will should have testamentary capacity.
2. Therefore a person should not be a minor, should be of sound mind (i.e. capable of
understanding his intention to make the will, proper memory, etc.)
3. He should also have property of which he is the owner.
REVOCATION OF A WILL
1. Section 70 deals with revocation of a will.
2. There are 2 ways of revoking a will
(i) Destruction of the earlier will with the intention of revocation is one of the modes of
revocation under this Section.
The testator himself or anyone else in presence of the testator may destroy the will. If not
destroyed in the testator’s presence, the revocation will not be held to be proper and not
within the knowledge of the testator.
(ii) Another mode of revocation is by making a subsequent will. The subsequent will contains a
clause revoking the previous will or otherwise contains a clause inconsistent with the
previous disposition.
(iii) Another mode of revocation as stated in S. 69, is revocation by subsequent marriage
3. If one revokes a will and doesn’t write a new property, his property will go by intestate
succession.

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UNIT 6- UNIFORM CIVIL CODE

1. A Uniform Civil Code can rightly be regarded as the need of the hour in India. Article 44,
under the Directive Principles of State Policy, states –“the State shall endeavour to secure
for the citizens a uniform civil code throughout the territory of India”
2. Several times, the apex court has tried to enforce this principle. are some of the few
instances where the judiciary has propagated the formation of a uniform civil code and
every time it has had to face some hurdle:
(i) The first instance being the famous Shah Bano case (Mohammad Ahmed Khan v. Shah Bano
Begum) in 1985 wherein the Supreme Court upheld the right of a Muslim woman to
maintenance under S.125 of the Cr. PC. The then Rajiv Gandhi led Government overturned
the Shah Bano case decision by way of Muslim Women (Right to Protection on Divorce) Act,
1986 which curtailed the right of a Muslim woman for maintenance under Section 125 of
the Cr. PC.
(ii) Sarla Mudgal v. Union of India, wherein the Court decided that a Hindu man cannot
solemnize a second marriage after converting to Islam and he would be liable for bigamy
under S.495 of the IPC. The most recent case regarding a uniform civil code has been that
of John Vallamattom v. Union of India, wherein the Court sought to strike down Section 118
of the Indian Succession Act which prevents Christians from willing property for charitable
and religious purposes.
3. The spine of controversy revolving around UCC remains the conflict between secularism
and the freedom of religion enumerated in the Constitution of India. It needs to be
understood that secularism does not mean allowing all religions to be practiced. It means
that religion should not interfere with the ordinary life of an individual. In fact, Art. 44 is
based on the concept that there is no necessary connection between religion and personal
law in a civilised society
4. Another major problem as regards creation of UCC remains the problem with drafting. It is
largely believed that if such a code is created, the Hindus who are in a majority in the
country will try to impose their laws on the rest. This feeling needs to be done away with
and a complete code taking into consideration the best tenets of every religion needs to be
enacted.
5. This in brief is a possible way by which the best provisions from different personal laws may
be compiled to form a UCC:
(i) MARRIAGE: Like in the case of marriage, monogamy must be made a rule and polygamy be
made punishable in all cases under S.495 of the IPC. The minimum age limit for a male
should be 21 years and for a female should be 18 years and punishment must be meted out
incase this is not followed. Registration of marriage must be made compulsory. Specific
qualifications and disqualifications in case of a marriage must be laid down like marriage
not to be allowed within prohibited degrees of relationship, etc. Consent of both parties to
be obtained and consent gotten by fraud or force or marriage in case of insanity must make
the marriage voidable. The concept of exclusive and absolute property of a married woman
must be recognized (as in case of Stridhan).

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(ii) DIVORCE AND JUDICIAL SEPARATION: As far as divorce is concerned, the grounds and
procedure for divorce should be specifically laid down. The grounds enumerated in the
code should be reasonable and the procedure prescribed should be according to the
principles of natural justice. An attempt must be made to put down all possible grounds
covered by personal laws in a befitting manner. Same must be with respect to judicial
separation. Also, there should be a provision for divorce by mutual consent.
(iii) MAINTENANCE AND ALIMONY: A husband should maintain the wife during the marriage
and also after they have divorced till the wife remarries. The amount of alimony should be
reasonable and be decided on basis of the income of the husband, the status and the
lifestyle of the wife. Parents should maintain their children, the son till he is able to
maintain himself and the daughter till she gets married. Both sons and daughters must
maintain their parents. Efforts should be made for provision of maintenance by state, in
absence of kin.
(iv) ADOPTION, CUSTODY AND GUARDIANSHIP: As far as adoption, custody and guardianship
are concerned, all must be recognized universally. In all three cases, the ‘welfare of the
child’ to be given paramount importance. Specific guidelines must be laid down as regards
adoption and any competent person must be allowed to adopt. Also, adoption by
foreigners must be allowed only after confirming all requisite details and ensuring that no
problems arise. Custody of the child upto the age of 5-7 years normally to be with the
mother (upto puberty for girls), unless she is deemed not fit for the same. In case of a
divorce, the same to be decided by the Court keeping in mind financial status of parent,
behaviour, preference of the child and most importantly, the welfare of the child. Parents to
be the natural guardian of the child and mother to given importance in the absence of the
father. An attempt must be made to make the same rules applicable for both legitimate and
illegitimate children.
(v) SUCCESSION AND INHERITANCE: The concept of succession and inheritance is however
associated with certain problems like the concept of Joint Family which is peculiar to Hindu
law. For a UCC to operate, this concept must be abolished. There should be no
discrimination based on sex in the matters of inheritance especially as regards father’s
property both self-acquired and coparcenary. Provisions must be made for inheritance of
the property of mother, which she has self acquired or acquired through her father or
relatives. Remarriage of a widow not to be a ground for disqualification from inheritance
from former husband’s property. As regards testamentary disposition, there should be no
limitations imposed on the extent to which the property can be bequeathed, the persons to
whom such property can be bequeathed and the donation of the property by will for
religious and charitable purpose. All provisions with respect to valid wills, gifts, etc. must be
specifically laid down.
6. Indeed, the government and public at large must set aside all parochial interests and
develop such a code which is the need of every present day society. It must be understood
that only if we are able to harmonise the laws of the various communities can we bring
them together and ensure that the nation as a whole prospers.

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