Inheritance Under

Muslim Law
No concept of Joint Family

- Muslims do not recognize the concept of Joint Family as a separate

entity or the distinction between the separate property or joint family
property.
- Where two sons inherit the property of their father, they take the
property as tenants-in-common and not as joint tenants.
- The son does not have a right by birth in the father’s property.
- Exclusive ownership with full powers of alienation is an essential
feature of property ownership under Muslim Law.
Single scheme of succession

- Muslim law provides a single scheme of succession irrespective of the sex of the
intestate.
- Blood Relation or consanguinity is the primary principle on which succession is
based and relations introduced in the family by marriage do not succeed.
- A Muslim woman acquires an absolute right in the property that she inherits,
whether as a daughter, sister or mother with full powers of alienation.
- Even after her marriage, neither the succession rights nor her control over the
inherited property is adversely affected.
- The source of acquisition of property of a male as well as of a female is of no
consequence here, and a woman’s blood relations are her heirs and the heirs of her
husband are not given any preference.
Heritable Property

- A Muslim is not permitted to bequeath more than 1/3 rd of his estate without the consent of
his heirs.
- Generally, even if he makes a Will, 2/3rd of the property would go by intestate succession,
provided that the heirs should not have confirmed the excess bequest.
- Where the deceased does not make a Will, the entire property would go by intestate
succession.
- Before the net assets of an intestate are calculated the estate is liable for payment of certain
expenses and liabilities. e.g., funeral expenses, unpaid debts, unpaid dower etc.
- The rules of Inheritance do not create any distinction between movable and immovable
property or separate and ancestral property.
No Recognition of Right by Birth

- Muslim law does not recognize the concept of ancestral or coparcenary

property and hence no right by birth in the property of the father is
recognized in favour of the son during his lifetime.
- So long as the father is alive, he enjoys full powers of alienation over
the property inter vivos such as by way of gift or sale etc. and the son
has a mere spes successionis, i.e., a hope or chance to succeed the
property.
- Two conditions for inheritance (spes successionis):
(a) He survives the father
(b) There is property available for succession
Succession where marriage of the deceased was
performed or registered under the Special Marriage
Act, 1954
The Muslim law of Inheritance and succession does not apply to the property of a Muslim intestate if he
gets married to a non-Muslim or even a Muslim under the Special Marriage Act, 1954. – Provisions of
Indian Succession Act, 1925 applicable.

If his marriage was contracted under Muslim Law but he gets this marriage registered under the 1954
Act, then upon such registration, the law of succession changes. i.e., succession governed by the 1925
Act and not by Muslim law.

 In case of Hindus,

Provisions of Indian Succession Act, 1925 applicable in case the intestate is married to a non-Hindu
e.g., Christian, under Special Marriage Act, 1954.

Provisions of Indian Succession Act, 1925 not applicable in case the intestate is married to a Hindu,
Buddhist, Jain, Sikh under Special Marriage Act OR married under Hindu customs to a Hindu,
Buddhist, Jain, Sikh but registered under Special Marriage Act.

s.19, 20, 21, 21A of Special Marriage Act, 1954.

Disqualifications

Difference of Religion:
 Fundamental principle – only a Muslim can inherit from a Muslim.
 A non-Muslim cannot inherit from a Muslim intestate.
 Caste Disabilities Removal Act, 1850 – the inheritance rights of a
convert are protected. Therefore, a Muslim heir converted to other
religion can inherit from a Muslim intestate.
 However, the descendants of the convert are disqualified from
inheriting the property.
Homicide:
 A person causing the death of another cannot inherit his property
through testamentary or intestate succession.
 Under Sunni Law – the rule is applied strictly, irrespective of
whether the death was caused intentionally or even accidently.
 Under Shia Law – the disqualification is operative only where
death was caused intentionally.
Illegitimate child:
 A child who is born after 6 months from the date of contracting a marriage is presumed to be a
legitimate child unless it is not a pre-mature child and provided that the father does not disclaim the
paternity by ‘lian’ i.e., accusation of adultery.
 Where it is born within 6 months of marriage, it is an illegitimate child but if there is a confusion
with respect to the date or time of Nikah, it can be cleared by an acknowledgement of paternity by
father.
 Acknowledgement by the father cannot make an illegitimate child legitimate, but it used to clear the
confusion with respect to the time of the marriage or even the fact of marriage.
 Under Sunni Law – an illegitimate child is deemed to be related to its mother, and inherits from her
and her relations but does not inherit from the father or any of his relations.
 Under Shia Law – an illegitimate child does not inherit from any of the parents nor from any of their
relatives.
Daughter in Exceptional cases:
Under Muslim law, both Sunni as well as Shia, a daughter is entitled
to succeed to the property of the parents, yet there are customs and
statutes, the operation of which excludes her from inheritance.
e.g., in Jammu and Kashmir, in some communities a daughter can
succeed only in absence of all male agnates of the deceased, while in
others she can inherit only is she is a “Khananashin”.
Khananashin – Stay at home.
Law of inheritance: Sunni law
Under Sunni law, heirs are divided into
(i) Related heirs:
a. Sharers,
b. Residuaries,
c. Distant kindred

(ii) Unrelated heirs:

d. Successor by Contract,
e. Acknowledged kinsmen,
f. Universal Legatee
Related heirs
- Comprise only blood relatives with exception of surviving spouse of the deceased.
- Sharers are heirs who were earlier excluded but were introduced as heirs by the Quaranic
revelations (disclosure of unknown facts)
- Their shares are fixed.
- Once the property is distributed among the sharers and anything is left, this surplus called
the residue goes to the next category, called residuaries.
- When there is no residuary present, the property passes to third category (Distant Kindred)
which comprises cognates.
- Exception: in absence of Residuaries, if either of the spouses is present i.e. widow or
widower, then the spouse will take his/her fixed share as a sharer and the rest of the
property would be taken by the distant kindred.
Unrelated heirs
a. Successor by Contract: gets property under a contract
b. Acknowledged kinsmen: a person of unknown descent, but
the deceased makes an acknowledgement of kinship in his
favour, through any other person.
c. Universal Legatee: Recipient of the whole property of the
deceased by a Will.
General Principles
(a) Rule of Exclusion:
 Nearer in degree, excludes the remoter.
 e.g. father excludes the paternal grandfather; son excludes a
son’s son.
 Rule applicable to sharers, residuaries and distant kindred.
 An heir who is related to the deceased through another person
would be excluded in presence of the one through whom he or
she is related to the deceased.
General Principles
(b) Return (Radd):
- If there is no residuary, the residue in presence of the sharers does not pass to the distant
kindred, but comes back to or returns to the sharers and they are entitled to take it in
proportion to their shares.
- Exception: The surviving spouse whether the husband or the wife is not entitled to take a
share from the ‘return’ or ‘radd’, so long as any other sharer or even a distant kindred is
present.

(c) Doctrine of Increase (AUL):

- The sharers are entitled to the property in fixed shares.
- It may happen sometimes that the sum total of the shares may exceed unity.
- In such a case, where the shares exceed the heritable property the shares of each of them are
proportionately deducted.
Sharers

The heritable property in the first instance is given to the sharers.

12 sharers – 8 females and 4 males.

 8 females:

1. Widow or Widows
2. Mother
3. True Grandmother
- When in between her and the intestate no false grandfather
intervenes e.g., father’s mother, mother’s mother.
4. Daughter
5. Son’s daughter how low so ever
6. Full sister
- Descendants of common parents
7. Consanguine sister
- From same father but from different mothers
8. Uterine sister
- From same mother but from different fathers
 4 males:

1. Husband
2. Father
3. True grandfather
- A male ancestor between whom and the deceased no female
intervenes e.g., father’s father, father’s father’s father.
4. Uterine brother
Primary Heirs

5 Primary Heirs – invariably inherit the property

1. Surviving spouse (husband/wife)

2. Son
Though
residuary but the rules of inheritance so designed that he would
always inherit the property
3. Daughter
4. Mother
5. Father
In the absence of primary heirs, their place is taken by their substitutes.

All heirs who are excluded by the primary heirs are also excluded by
their substitutes.

Substitutes:

1. For father – True Grandfather

2. For son/daughter – the child of a son
3. For mother – True Grandmother
Residuary
 Primarily male agnates. Sometimes, certain females (sharers) inherit as residuaries.
 Residuary – no fixed share, unlike sharer. It solely depends upon the residue left.

 In general,
First, the heritable property devolves upon the sharers, then residuaries and finally
upon distant kindred. Residuary takes the residue.
 Exception:
- If no residuary, but sharers – residue is distributed among the shares first.
- If surviving husband or wife + other sharers or even distant kindred, then husband or
wife does not have any right in residue.
Residuary
 Residuaries include:

1. Descendants

2. Ascendants

3. Descendants of Father

4. Descendants of True Grandfather how high so ever

 Residuary
1. Descendants:
- Son
- Son’s son how low so ever
- Rule of exclusion to be followed – lower son’s excluded by higher son’s son
- If daughter (D and Son’s son (SS), D takes as sharer and SS as residuary. Similar is the case for
SD and SSS.
- If SD and SS, both take as residuary as in same level. SD = ½ of SS.

2. Ascendants:
- Father – inherits both as sharer and residuary.
- True Grandfather – only in absence of father – inherits in the same manner as father.
- Rule of exclusion to be followed.
Residuary
3. Descendants of Father
- Full brother + Full Sister
- Consanguine Brother
- Sons of Full and Consanguine Brother
- Rule of exclusion to be followed.
o Full brother – in absence of son, father and true grandfather.
o Full sister – generally as sharer. However, she takes as residuary:
a. In presence of Brother - Sis = ½ of Br.
b. In absence of Brother and all preceding residuaries + (Ds or SDs how low
so ever OR 1D + 1SD how low so ever)
Residuary
o Consanguine brother
- Residuary in absence of all preceding male residuaries

o Consanguine sister
- Generally as sharer
- She inherits as residuary:
a. In presence of CBr – Csis = ½ of CBr
b. Ds or SDs how low so ever OR 1D + 1SD how low so ever.

o Sons of full and consanguine brother

- BrS then CBrS – Rule of Exclusion to be followed.
Residuary
4. Descendants of True Grandfather how high so ever
- Full Paternal Uncle
- Consanguine Paternal Uncle
- Full Paternal Uncle’s Son
- Consanguine Paternal Uncle’s Son
- Full Paternal Uncle’s Son’s Son
- Consanguine Paternal Uncle Son’s Son
|. . . . . . . . . . . . .
|. . . . . . . . . . . . .
|. . . . . . . . . . . .
|. . . . . . . . . . . . . So on and so forth . . . . . . .
– Male descendants of Remoter True Grandfather
Distant Kindred
 All Cognates except Sharers

 Includes:
1. Descendants:
- Daughter’s descendants

2. Ascendants:
- False Grandmothers
- False Grandfathers
- Rule of Exclusion to be followed
Distant Kindred
3. Descendants of parents:
- Daughters of Full and Consanguine brothers and sisters
- Descendants of Daughters of Full and Consanguine brothers and sisters how low so ever
- Descendants of uterine brothers and sisters how low so ever

4. Descendants of Immediate Grandparents (True/False) and Descendants of Remote

Ancestors how high so ever
- Paternal and Maternal Uncles and Aunts of the deceased and their descendants
- Paternal and Maternal Uncles and Aunts of the grandfather of deceased and their
descendants
 Unrelated heirs
1. Successor by Contract:
- Contract between successor + deceased for the payment of a monetary liability of the deceased
2. Acknowledged Kinsman:
- If no successor by contract
- subject to bequeathable limit of 1/3
- Person of unknown descent
- e.g., A acknowledged X to be his brother.
3. Universal legatee:
- To whom the whole property is given under a Will

 If no sharer, no residuary, no distant kindred – application of doctrine of escheat.

SHIA LAW OF INHERITANCE
I. Consanguine Heirs – related to deceased by blood.
II. Relation by marriage – husband/ wife.
- These heirs are divided into 3 groups (classes), former excluding the latter.
- The sub-groups within the groups inherit together and do not exclude the other.
Class I:
a. Parents
b. Children and other lineal descendants how low so ever

Class II:
c. All grandparents how high so ever.
d. Brothers and Sisters and their descendants how low so ever.
SHIA LAW OF INHERITANCE
Class III:
Paternal and Maternal Uncles and Aunts of the deceased, and of his parents and grandparents how
high so ever, and their descendants how low so ever.

Classification:
Sharers, Residuaries and No Distant Kindred

Sharers:
3 males: father, husband and uterine brother.
6 females: mother, wife, uterine sister, daughter, full sister, consanguine sister.
SHIA LAW OF INHERITANCE
 Lineal Descendants
- Grouped in one category
- Not spread over all the three categories of sharers, residuaries and distant kindred. (Unlike Sunni
Law)
- Rules:
i. Lineal descendants inherit subject to the rule of exclusion.
ii. Rule of Representation: The lineal descendants of one child would take the share that would
have been inherited by their respective parent and would divide it amongst themselves, males
taking a double portion than females.
The rule is applicable where the heirs are the descendants of two or more children
but are in the same degree of relationship.
iii. Succession among the lineal descendants is per stirpes and not per capita.
 DOCTRINE OF RETURN
(Under Shia)
 If after the satisfaction of the claim of the sharers, some residue is left but there is no residuary, this
excess share comes back to the sharers.
 However, the return is subject to the following rules:
1. The surviving spouse is not entitled to any return if any other heir is present. However, if no sharer
present, spouse can take the return.
2. Mother of the deceased cannot claim the return in the presence of father, daughter and:
a. Two or more full or consanguine brothers; or
b. One full or consanguine brother and two full or consanguine sisters; or
c. Four full or consanguine sisters.
In such cases, the surplus is taken by the father and the daughter in proportion to their shares.
3. In presence of the full sister, the uterine brother or uterine sister cannot take the surplus by return.
 DOCTRINE OF INCREASE
(Under Shia)
 Shias do not recognize the doctrine of Aul.

 If the sum total exceeds unity, the excess share is deducted

from the share of the daughter or full or consanguine
sisters.