INTRODUCTION

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, Residuaries,
the ones who would take up the share in the property that is left over after the
sharers have taken their part.

Under the Indian legislative scheme, the rules that govern inheritance under the
Muslim law depend on the kind of property involved. In cases of Non
testamentary succcession, 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 Shariat Law as applicable to the Shias and the Sunnis. In cases
where the subject matter of property is an immovable property which is situated
in the state of West Bengal or comes within the jurisdiction of Madras or
Bombay High Court, the Muslims shall be bound by the Indian Succession Act,
1925. This exception is only for the purposes of testamentary succession.

It is noteworthy that 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.
In Abdul Raheem vs. Land Acquisition Officer, AIR 1989 AP 318, it was held
that the joint system family or joint property is unknown to Muslim law and
therefore the right, title and interest in the land held by the person stands
extinguished and stands vested in other persons.

There is also no difference between a self-acquired property or ancestral

property in Muslim law. This means that, unlike Hindu Law, when a Muslim
person dies, all the property that the person may have acquired in his lifetime
and also any property that the person may have inherited from his ancestors can
be inherited by his heirs.

Types of heirs

There are two types of heirs in under Muslim law: Sharers and Reliquaries.
Sharers are entitled to specific fractions of the property of the deceased whereas
Reliquaries, as the name suggests, are distributed any residual share in the
property.

Sharers:

There are 12 relations that fall under the category of Sharers in Muslim law:

1. Husband

2. Wife

3. Daughter

4. Daughter of a song (or a son’s son or a son’s son’s son’s)

5. Father

6. Paternal grandfather

7. Mother
8. Grandmother on the side of the males

9. Full sister

10. Consanguine sister

11. Uterine sister

12. Uterine brother

No right by birth

Under the Hindu law, a coparcenary gains an interest or right in the property of
the deceased the moment such a coparcenary is born. This right to property by
birth is called Janmaswatvavad. But because there is no concept of a joint family
under Muslim law, there is no concept of right to property by birth
either. Muslim law follows the principle of nemoesthaeresviventis i.e. nobody
can become an heir to a living person. This means under Muslim law, the legal
right to inheritance of property arises only upon the death of the deceased and
not upon the birth of the child.

Another point to note is that an heir can only gain a share in the property of the
deceased if the heir outlives the deceased. However, if the heir apparent dies
before the deceased then he or she will gain no right to inheritance and thereby
their family members cannot take up their share in place of them.

Principles governing rules of inheritance of joint or ancestral property

Unlike Hindu law, there is no provision of distinction between individual i.e.

self acquired or ancestral property. Each and every property that remains within
the ownership of an individual can be inherited by his successors. Whenever a
Muslim dies, all his property whether acquired by him during his lifetime or
inherited from his ancestors can be inherited by his legal heirs. Subsequently, on
the death of every such legal heir, his inherited property plus the property
acquired by him during his lifetime shall be transferred to his heirs.
Birth right

The principle of Hindu law of inheritance of Janmaswatvad does not find place

in the Muslim law of inheritance. The question of inheritance of property in
Muslim law comes only after the death of a person. Any child born into a
Muslim family does not get his right to property on his birth. In fact no such
person holds becomes a legal heir and therefore holds no right till the time of
death of the ancestor. If an heir lives even after the death of the ancestor, he
becomes a legal heir and is therefore entitled to a share in property. However, if
the apparent heir does not survive his ancestor, then no such right of inheritance
or share in the property shall exist.

Inheritance on the basis of Doctrine of Representation

Doctrine of representation states that if during the lifetime of an ancestor, any of

his or her legal heirs die, but the latter’s heirs still survive, then such heirs shall
become entitled to a share in the property as now they shall be representing their
immediate generation. Doctrine of Representation finds its recognition in the
Roman, English and Hindu laws of inheritance. However, this doctrine of
representation does not find its place in the Muslim law of inheritance. For
example, A has two sons B and C. B has 2 children i.e. D and E and C also has
two children F and G. During the life time of A if B dies, then on the event of
death of A only C shall be entitled to inherit A’s property. B’s children D and E
shall not be entitled to any share in A’s property. Between C and B’s children D
and E, C would totally exclude D and E from inheriting the property. Therefore,
it is said that the nearer heir excludes the remote heir from inheritance.  The
Muslim jurists justify the reason for denying the right of representation on the
ground that a person has not even an inchoate right to the property of his
ancestor until the death of that ancestor.[1] It is further argued that a right which
was not vested in any possibility cannot give rise to claim through a deceased
person.
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 recognised 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. For example, if A has two sons i.e. B and C. B has two
children i.e. D and E. C has three children F, G and H. Suppose on the death of
A his property’s worth is estimated to be about 12000. B and C would be
entitled to an equal share of 6000 each. . In case if B and C both die, then the
extent of their children’s share shall be in following manner.  B’s children D
and E can only inherit the property to the extent of B’s share. Their share shall
be 3000 each. As far as the children of C are concerned the extent of property
that they can inherit shall extend to 6000. Their respective shares shall be equal
i.e. 2000 each. Hence, it can be said that the share of each person in this method
of distribution varies.

It is noteworthy that the Shia law recognises the principle of representation for a
limited purpose of calculating the extent of share of each person. Moreover,
under the Shia law this rule is applicable for determining the quantum of share
of the descendants of a pre-deceased daughter, pre-deceased brother, pre-
deceased sister or that of a pre-deceased aunt.

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. Preferential rights do not exist.
However, it is generally found that the quantum of share of female heir is half
of that of the male heirs. The justification available to this distinction under
Muslim law is that the female shall upon marriage receive mehr and
maintenance from her husband whereas males will have only the property of the
ancestors for inheritance. Also, males have the duty of maintaining their wife
and children.

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.

GROUNDS OF DISQUALIFICATIONS

Disqualifications which debar the heirs to succeed the property of the intestate are—

MURDERER
Under the Sunni Law, a person who has caused the death of another, whether intentionally, or
by mistake, negligence, or accident, is debarred from succeeding to the estate of that other.
Homicide under the Shia Law is not a bar to succession unless the death was caused
intentionally.
ILLEGITIMATE CHILDREN
Under the Hanafi School, an illegitimate child is not entitled to inherit. Such a child cannot
inherit from his/her father but can inherit from his/her mother and all relatives of the mother.
The mother can also inherit the property of her illegitimate children.

Shia law; General principles

The basic differences between the Shia law and the Hanafi law arise on account
of the fact that the latter interpret the Quranic rules strictly and hold that the
Quranic rules are nothing but transposition of certain rules on the customary law
of succession, while the former interpret the Quranic rules so widely as if they
lay down an independent scheme of succession. Thus, the Shia interpretation of
the Quranic rules does not recognize the prior rights of agnates over cognates or
of males over females. With the exception of the rights of husband and wife, the
Shia law lays down that the estate of the deceased devolves on blood relations
equally, though among themselves they take per stripe: the females are allotted
half the share allotted to the males in each grade. This also results in
descendants, ascendants and collaterals inheriting side by side.

Doctrines of Aul (increases) and Radd (return)

In a system of law which assigns fixed shares to heirs, two anomalous

situations are likely to arise: The sum of shares allotted to various heirs
according to their entitlement, (i) may be in access of the unity, or (ii) may be
less than the unity. The former situation is solved by' the application. of the
doctrine of aul or increase, and the .latter by the application of the doctrine of
radd or return.

Doctrine of aul or increase

When the sum total of the shares allotted to various heirs in accordance with
their entitlement -exceeds the unity, then the doctrine of aul lays down that the
share of each heir should be proportionately reduced. This is done by reducing
the fractional shares to be common denominator. Since this is done by
increasing the denominator, the doctrine has been given the name of increase
(aul) though in fact the shares are proportionately reduced. The doctrine can be
explained by an example:

P dies leaving behind her husband; H, two full sisters, FD and FDl, and Mother
M They will be allotted the shares as under:

H....1/2 or 3/6
FD & FD1...2/3 or 4/6
M.... l/6
The proportionate reduction of shares is achieved by increasing the denominator
from 6 to 8. Thus, the shares of the' respective shares will be: H will take 3/8,
FD &: FD1 4/8 and M 1/8.

We may take another example: P dies leaving husband, H, full sister, FD, two
uterine sisters, MD and MDI, two uterine brothers, MS and MSI and mother, M.
All these heirs are sharers. In accordance with their entitlement, their shares will
come to: M 1/6, H 1/2, FD 1/9, MD, MDI, MS and MS1, 3/4. This will be
reduced to 1/9, 3/9, 3/9 and 2/9 respectively.

Under Shia law the share of only following heirs should be proportionately
reduced:

 Daughter

 Full Sister

 Consanguine Sister

But not from the share of Uterine Sister

Doctrine of radd or return

When there is surplus left after allotting the shares to the sharers in accordance
with their entitlement, and there are no residuaries to take the surplus, then the
doctrine of return lays down that the surplus is to be distributed among the
sharers in proportion to their respective shares. This doctrine, recognizes one
exception, viz., neither the husband nor the wife is entitled to the return so long
as' there is alive another sharer or a distant kindred. But in India this is not the
law. In the absence of a sharer or distant kindred, the surplus, returns to the
husband or the wife, as the case may be. Thus, under Muslim law of modern
India, the doctrine of return lays down: (i) the surplus is distributed among the
sharers in proportion to their shares. (ii) But the husband or the wife is not
entitled to return, so long as there is a sharer or distant kindred alive. (If there is
no sharer or distant kindred, then the surplus returns to the wife or husband.

Examples

(i) P dies leaving behind his mother M, and his daughter D. M takes 1/6 and D
takes 1/2.There remains 'a surplus of 1/3. Since there is no residuary, 1/3 will
return to D and M. M's share will be increased to 1/4 and D's share to 3/4'. The
formula in the case of return is to reduce the common denominator.

(ii) P dies leaving behind his wife, W, and none else.' W will take 1/4 as Sharer
and 3/4 by return. When, there is no other heir, the doctrine of return applies to
the spouses.

Escheat in Muslim Law

The Doctrine of Escheat is accepted by Muslim Law. However, the property

escheated does not devolve upon the Government by way of inheritance as
ultimus haeres but as bait-ulmal (public treasury) for the benefit of Mussalmans
only. According to Sunni Law, on failure of all the heirs and successors, the
property of a deceased Sunni Mohammedan escheats to the Government.
According to Shia Law, on failure of all the natural heirs, the property of a
deceased Shia Mohammedan escheats to the Government.
 BIBLOGRAPHY

1. Muslim law , Akeel Ahmad

2. www.legalbites.in
3. www.researchgate.net
4. www.medium.com
5. www.blog.ipleaders.in