INHERITANCE IN MUSLIM LAW

By: Namisha Choudhary (Intern)

YIMF, ACADEMIA
INHERITANCE UNDER MUSLIM LAW

“Law and order are the medicine of the body politic and when the body politic gets sick,
medicine must be administered.”-Dr. B.R. Ambedkar

In India there is no uniform ‘Law of Inheritance’ for all the citizens. Every religion that is
followed in India has its own personal laws including laws of inheritance. Inheritance is
represented as the most important method through which wealth gets transferred from one
generation to the next.

The Islamic Law of inheritance is a combination of the pre-Islamic customs and the rules
introduced by the Prophet. Whatever is remaining after the death of a Muslim comes under his
heritable property. However, Muslims across the country do not have any codified property
rights. They are governed by two sects of Muslim Personal law, which are Hanif and Shia.

Muslim law of succession constitutes four sources of Islamic law –

1. The Holy Quran

2. The Sunna - that is, the practice of the Prophet
3. The Ijma - that is, the consensus of the learned men of the community on what should
be the decision on a particular point .
4. The Qiya - that is, an analogical deduction of what is right and just in accordance with
the good principles laid down by God.

Sharers:

The Sharers are 12 in number and are as per the following:

1) Husband
2) Wife
3) Girl
4) Daughter of a child (OR’s child OR’s child, etc)
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 sibling.

The offer taken by every sharer will differ in specific conditions. For example, a spouse takes
1/fourth of offer for a situation where the couple is without lineal relatives, and a one-eighth
offer in any case. A spouse (on account of progression to the spouse's domain) takes a half
offer for a situation where the couple is without lineal relatives, and a one-fourth offer in any
case. A sole little girl takes a half offer. Where the perished has left behind more than one girl,
all little girls mutually take 66%.

On the off chance that the expired had left behind son(s) and daughter(s, the girls stop to be
sharers and become Residuaries all things being equal, with the build-up being so circulated as
to guarantee that every child gets twofold of what every little girl gets.

Muslim law recognizes two types of heirs, Sharers and Residuaries. Sharers are the ones who
are entitled to a certain share in the deceased’s property and Residuaries would take up the
share in the property that is left over after the sharers have taken their part.

While the Hanafi school (Hanafi school of Sunni Sect) recognises only 2 those relatives as
heirs whose relation to the deceased is through a male. This includes son's daughter, son's son
and father's mother. The Shia school(sect), on the other hand, favours no such discrimination.
This means that heirs, who are related to the deceased through a female are also accepted. The
estate of a deceased Muslim devolves on his heirs separately and the heirs are entitled to hold
the property as tenants-in-common, each having a definite share in the property.

This means that heirs, who are related to the deceased through a female are also accepted. The
estate of a deceased Muslim devolves on his heirs separately and the heirs are entitled to hold
the property as tenants-in-common, each having a definite share in the property. 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). Muslim law recognises two types of heirs, firstly, sharers,
the ones who are entitled to certain share in the deceased’s property and secondly, Residuary,
the ones who would take up the share in the property that is left over after the sharers have
taken their part.
The Qur'an contains only three verses, which give specific details of inheritance and shares, in
addition to few verses dealing with testamentary power. Muslim jurists used these verses as a
starting point to expound the laws of inheritance even further using Hadit, as well as methods
of juristic reasoning, like Qiyas. This amalgamation of old agnatic customs and Islamic Law
led to a number of problems and controversies that Muslim jurists have solved in different
ways. Through the use of deductive reasoning (Qiyas), Muslim jurists added three additional
heirs: the paternal grandfather, maternal grandmother, and agnatic 4 granddaughter. These
heirs, if entitled to inherit, are given their fixed shares and the remaining estate is inherited by
the residuaries ( a aba). In some cases, they have also ʿ ṣ upheld the rule of men having twice
the share of women in circumstances not readily mentioned in the Qur'an, and tried to deal with
complex cases in a variety of different contexts. This led to some minor differences between
jurisprudence schools of the Sunni mabbhabs. Also, the laws of inheritance for Twelver Shia,
despite being based on the same principles, differ in a number of features due to the rejection
of certain accounts of Hadith and based on their understanding of certain events in early Islam.

Different types of heirs:

Heirs referred to as primary heirs are always entitled to a share of the inheritance, they are
never totally excluded. These primary heirs consist of the spouse relict, both parents, the son
and the daughter. But under certain circumstances, other heirs can also inherit as Residuaries,
namely the father, paternal grandfather, daughter, agnatic 7 granddaughter, full sister,
consanguine sister and mother.

Those who inherit are usually confined to three groups:

1. Quota-heirs (dhawu al-farā ), usually include daughters, parents, grandparents, ʾḍ husband

and wife/ wives, brothers and sisters, and others. This group usually take a designated
share or quota of the estates. 2.
2. Members of an aba (residuaries), usually a combination of male (and sometimes ʿ ṣ female)
relatives that inherit as residuaries after the shares of the Quota-heirs is distributed.
3. In case a person leaves no direct relatives and there is no u aba, his property ʿ ṣ escheats to
the state treasury (Bayt al-mal).

General Principle of Inheritance in Islam:

• Nature of the Heritable Property:

Heritable property is that property which is accessible to the legitimate beneficiaries for legacy.
After the passing of a Muslim, his properties are used for the instalment of memorial service
costs, obligations and the heritages for example wills, assuming any. After these instalments,
the remaining property is called heritable property. Under Muslim law, each sort of property
might be a heritable property.

For motivations behind legacy, Muslim law doesn't make any qualification between corpus and
usufruct or, among portable and undaunted, or, mortal and ethereal property. Under English
law, there is some distinction in the legacy of portable and resolute property. But, under Muslim
law there is no such qualification; any property, which was in the responsibility for expired
right now of his passing, might be the topic of legacy.

Shia Law:

Under the Shia law, a childless widow is qualified for get her offer (1/4) in the legacy just from
the mobile property left by her expired spouse.

Non-Testamentary and Testamentary progression under Muslim law:

In Non-testamentary progression, the Muslim Personal Law (Shariat) Application

Act, 1937 gets applied. Then again, in the event of an individual who passes on testate for
example one who has made his will before death, the legacy is administered under the important
Muslim Shariat Law as appropriate to the Shias and the Sunnis. In situations where the topic
of property is an unflinching property, arranged in the province of West Bengal, Chennai and
Bombay, the Muslims will be limited by the Indian Succession Act, 1925. This exemption is
just for the reasons for testamentary progression.

Inheritance:

Legacy of property in Muslim law comes solely after the passing of an individual, any
youngster naturally introduced to a Muslim family doesn't get his entitlement to property on
his introduction to the world. In the event that a beneficiary lives even after the passing of the
predecessor, he turns into a legitimate beneficiary and is subsequently qualified for an offer in
the property. Notwithstanding, if the obvious beneficiary doesn't endure his precursor, at that
point no such right of legacy or offer in the property will exist.

Dissemination of the Property:

Under the Muslim law, dissemination of property can be made two – per capita or per strip
dissemination. The per capita dissemination technique is significantly utilized in the Sunni law.
As indicated by this technique, the bequest left over by the precursors gets similarly circulated
among the beneficiaries. Hence, the portion of every individual relies upon the quantity of
beneficiaries.

The per strip circulation technique is perceived in the Shia law. As per this technique for
property legacy, the property gets dispersed among the beneficiaries as per the strip they have
a place with. Thus, the quantum of their legacy moreover relies on the branch and the quantity
of people that have a place with the branch.

Privileges of females:

Muslim doesn't make any qualification between the privileges of people. On

the demise of their predecessor, nothing can forestall both young lady and kid youngster to turn
into the legitimate beneficiaries of inheritable property. Notwithstanding, it is for the most part
tracked down that the quantum of the portion of a female beneficiary is half of that of the male
beneficiaries. The explanation behind this is that under the Muslim law a female will upon
marriage get

mehr and upkeep from her better half while guys will have just the property of the progenitors
for legacy. Likewise, guys have the obligation of keeping up their significant other and
youngsters.

Widow's entitlement to progression:

Under Muslim law, no widow is avoided from the progression. A childless Muslim widow is
qualified for one-fourth of the property of the expired spouse, after meeting his burial service
and lawful costs and obligations. Be that as it may, a widow who has kids or grandkids is
qualified for one-eighth of the perished spouse's property. In the event that a Muslim man weds
during an ailment and hence kicks the bucket of that ailment without brief recuperation or
culminating the marriage, his widow has no privilege of legacy. However, in the event that her
feeble spouse separates from her and a while later, he passes on from that disease, the widow's
entitlement to a portion of legacy proceeds until she remarries.

A Child in the Womb:

A kid in the belly of its mom is skilled to acquire given it is conceived alive. A youngster in
the undeveloped organism is viewed as a living individual and, accordingly, the property vests
promptly around there. However, on the off chance that such a kid in the belly isn't conceived
alive, the offer previously vested in it is stripped and, it is assumed as though there was no such
beneficiary (in the belly) by any stretch of the imagination.

Escheat:

Where a perished Muslim has no lawful beneficiary under Muslim law, his properties are
acquired by Government through the cycle of escheat.

Marriage under the Special Marriage Act, 1954:

Where a Muslim agreements his marriage under the Special Marriage Act, 1954, he stops to be
a Muslim for motivations behind legacy. Appropriately, after the passing of a particularly
Muslim his (or her) properties don't degenerate under Muslim law of legacy. The legacy of the
properties of such Muslims is administered by the arrangements of the Indian Succession Act,
1925 and Muslim law of legacy isn't appropriate.

Joint or Ancestral Property:

The concept of a joint family or of coparcenary’s property (as is recognised under Hindu law)
is not known to Muslims. Whenever a Muslim dies, his properties devolve on his heirs in
definite share of which each heir becomes an absolute owner. Subsequently, upon the death of
such heir, his properties are again inherited by his legal heirs, and this process continues. There
is no provision for any ancestral or joint-family property. Accordingly, under Muslim law of
inheritance, no distinction has been made between self-acquired and ancestral property. All
properties, whether acquired by a Muslim himself or inherited by his ancestors, are regarded
as an individual property and, may be inherited by his legal heirs.

Doctrine of Representation:

Convention of portrayal is a notable guideline perceived by the Roman, English and Hindu
laws of legacy. Under the guideline of portrayal, with no guarantees perceived by these
frameworks of laws, the child of a predeceased child addresses his dad for motivations behind
legacy. The convention of portrayal might be clarified with the assistance of the graph given
underneath. P has two children An and B. A has got two children С and D and В has a
child E. During the existence of P, his relatives are his two children (An and B), and three
grandsons (C, D and E). Tragically, В pre-expires P, for example В bites the dust before the
demise of P. Thusly, at the point when P likewise passes on, the sole enduring individuals from
the group of P are An and three grandsons, C, D and E.

Under the tenet of portrayal, E will address his pre-perished father В and would be qualified
for acquire the properties of P in a similar way as В would have acquired had he been alive at
the hour of P's demise. Be that as it may, Muslim law doesn't perceive the teaching of portrayal.
Under Muslim law, the closer prohibits the remoter. Appropriately, in the outline given above,
E will be completely prohibited from acquiring the properties of P. Both, under Shia just as
under Sunni law, E has no privilege to acquire the properties of P. The outcome is that We can't
take the request that he addresses his pre-expired dad (В) and ought to be subbed in his place.
Under Muslim law, the closer beneficiary absolutely prohibits a remoter beneficiary from
legacy. That is to say, if there are two beneficiaries who guarantee legacy from a typical
precursor, the beneficiary who is 10nearer (in degree) to the expired, would prohibit the
beneficiary who is remoter. In this way, between A what's more, E, A will absolutely reject E
on the grounds that An is closer to P in degree though, E has a place with the second level of
age. The Muslim legal scholars legitimize the justification denying the privilege of portrayal
on the ground that an individual has not so much as a rudimentary right to the property of his
progenitor until the passing of that precursor.

Appropriately, they contend that there can be no case through an expired individual in whom
no right might have been vested by any chance. In any case, it very well might be presented
that non recognition of standards of portrayal under the Muslim law of legacy, is by all accounts
preposterous and brutal. It is coldblooded that a child, whose father is dead, can't acquire the
properties of his granddad along with his uncle.

Per-Capita and Per-Strip Distribution:

Succession among the heirs of the same class but belonging to different branches may either
be per-capita or per-strips. In a per-capita distribution, the succession is according to the
‘number of heirs’ (i.e. heads). Among them the estate is equally divided; therefore, each heir
gets equal quantity of property from the heritable assets of the deceased. On the other hand, in
a per strip distribution, the several heirs who belong to different branches, get their share only
from that property which is available to the branch to which they belong. In other words, in the
stripital succession, the quantum of property available to each heir depends on the property
available to his branch rather than the number of all the heirs. Under Sunni law, the distribution
of the assets is per-capita. That is to say an heir does not in any respect represent the branch
from which he inherits.

Shia Law: Under the Shia law, if there are several heirs of the same class but they descend from
different branches, the distribution among them is per strip. That is to say, the quantum of
property inherited by each of them depends upon the property available to that particular branch
to which they belong.

Simultaneous Death of two Heirs:

When two or more persons die in such a circumstance that it is not ascertainable as to who died
first (i.e. who survived whom) then, both of them cease to be an heir for each other. In other
words, where two or more heirs die simultaneously and, it is not possible to establish as to who
died first then under Muslim law, all the heirs are presumed to have died just at one moment.
The result is that such heirs are regarded as if they did not exist at all; the inheritance opens
omitting these heirs.

Missing Persons:

According to the texts of Hanafi law, a missing person was supposed to have been dead only
after ninety years from the date of his birth; till then the inheritance of his properties did not
open. But, now this rule has been superseded by Sec. 108 of the Indian Evidence Act, 1872
which provides as under: “When the question is whether a man is alive or dead, and it is proved
that he has not been heard of for seven years by those who would naturally have heard of him
if he had been alive, the burden of proving that he is alive is shifted to the person who affirms
it”. Accordingly, where a Muslim is missing for at least seven years and if it could not be
proved that he (or she) was alive then, that person is legally presumed to be dead and the
inheritance of his (or her) properties opens.

Wills are not encouraged in most Islamic societies and are, in some jurisdictions, indeed
prohibited in spite of the existence of ahadeeth condemning intestacy. In any case the testator
is restricted to willing a maximum of one third of his estate and usually only to other than his
legal heirs. It is to be noted that the only difference between the gift and the will is one of
timing; the former realizes the father's legitimate intent while the latter frustrates it. The
restrictions on the proportion of the will is based, by the jurists, on their incorrect construction
of a famous hadeeth wherein the Prophet, peace be upon him, in response to a question from
Sa'd Ibn Abi-Waqqaass - who was sick and believed that he was about to die - if he should
bequeath his entire estate to charity, to the exclusion of his only daughter, refused; Sa'd then
suggested one half of the estate and again the Prophet refused, upon which he proposed that he
will only one third. The Prophet reluctantly approved suggesting that even that was too much.
He also advised the dying man that it was better to leave his child rich rather than poor. There
are several versions of this hadeeth in Al-Bukhari.The Quran commands to use the instrument
of the will to transfer once property after his death. The first reference to inheritance in the
Quran occurs at chapter 2, Al-Baqarah verses 180 through 182 which enjoin "(180). It is
decreed for that when death approaches one of follower, if he leaves property, he shall write a
will in favour of the parents and relatives equitably. This is a duty upon the righteous (181). If
anyone changes a will after he has heard it, the sin of altering the will shall be fall those
responsible for altering it. God is Hearer, Knower (182). The very first mention of inheritance
in the Quran commands to transfer his property to his heirs by means of a will. Moreover, Lord
makes it a duty upon the righteous.

In actual practice, if the father gifted the difference to the daughter before his own death, there
would be no repercussions; if, however, he willed her the difference by way of bequest, such a
will would be invalid on the grounds that a legal heir cannot be the beneficiary of a will.
Similarly, if that man had two sons, one god fearing, obedient and kind and considerate to his
parents while the other is a rebellious, uncaring, insensitive profligate. Would it be equitable
to give the latter a share equal to that of his good brother? The obvious answer is no. In fact
giving him anything might simply speed his decline. His father may deem it necessary, for the
good of the wayward son's children, if he had any, to disinherit him and will his share to them
by way of a trust if they are minor, or directly if they are grown up. A third case that comes to
mind is that of a man with several children who have children of their own. One of the man's
children predeceases him. In the Hanafi jurisdiction the children of the deceased son receive
no part of their grand- father's estate. However, the jurists - realizing the gross injustice that
that rule represents to the deceased son's children - prescribe, of all things, a will to be made
by the grandfather in favor of the grandchildren bequeathing to them their father's share of the
legacy. This is referred to as "wassiyah wajibah" - literally, "a will that should be made".
However, the value of the will cannot exceed one third of the estate even though the dead son's
share may be more than one third. The difference above the third will be unjustly lost to the
children who are the true beneficiaries and given to someone who is not entitled to it. This is,
at least, an injustice and if the children are young and fall under the definition of 'orphans' it
becomes a mortal sin that violates chapter 4, An-Nissaa', verse 10 of which more later. God
does not condone injustice and He is aware of all we do. In Non-testamentary succession, the
Muslim Personal Law (Shariat) Application Act, 1937 gets applied. On the other hand, in case
of a person who dies testate i.e. one who has created his will before death, the inheritance is
governed under the relevant Muslim ShariatLaw as applicable to the Shias and the Sunnis.In
cases where the subject matter of property is an immovable property, situated in the state of
West Bengal, Chennai and Bombay, the Muslims shall be bound by the Indian Succession Act,
1925. This exception is only for the purposes of testamentary succession.

_____________________________________________________________________
WORKS CITED

• Lakshmi Narayan B, Muslim Law of Inheritance.

• Inheritance under Muslim Law,

https://districts.ecourts.gov.in/sites/default/files/jcj%20palakondawrkshp1.pdf

• Inheritance under Muslim Law,

https://www.helplinelaw.com/real-estate-wills-probate-and-trust/IUDML/inheritance-under-muslim-law.html