DR.

RAM MANOHAR LOHIA

NATIONAL LAW UNIVERISTY

ANALYSIS OF SUCCESSION AND INHERITANCE

IN HINDU AND MUSLIM LAW

Submitted by

Param Chaudhary

Enrolment no.- 210101099

B.A. LL.B.(Hons.)

4th Semester, Section ‘B’

I hereby declare that my project work titled “Analysis of Succession and Inheritance in Hindu

and Muslim Law” submitted to the Law department, Dr. Ram Manohar Lohia National Law

University, Lucknow is a record of an original work done by me under the guidance of Ms.

Samreen Hussain and this project work is submitted in the partial fulfilment of the

requirements for the award of the degree of B.A. LLB.(hons). This project work has not been

submitted to any other University or Institute for the award of any degree or diploma

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 INTRODUCTION

Inheritance laws have been a crucial aspect of every society for centuries. In South Asia, two

of major religions, Hinduism and Islam, have their unique personal laws governing

succession and inheritance. These laws have evolved over time and have been shaped by a

variety of cultural, social, and religious factors.

The Hindu law of succession is based on the ancient texts of Manusmriti and the Mitakshara

and the Dayabhaga schools of thought, among other local practices and beliefs. It is governed

by the Hindu Succession Act of 1956, which was amended in 2005. Under this law, the

property of a Hindu male is divided among his heirs in a specific manner. The heirs include

his wife, children, and grandchildren, but not his parents. The law also recognizes the concept

of coparcenary, which is the joint ownership of ancestral property by male members of a

family. The 2005 amendment gave daughters equal rights to ancestral property and also

abolished the concept of coparcenary being restricted to male members only.

On the other hand, Islamic law of succession is based on the Quran and the Hadiths. It is

governed by the Muslim Personal Law (Shariat) Application Act of 1937. Under this law, the

property of a Muslim male is divided among his heirs in a specific manner, including his

wife, children, parents, siblings, and other close relatives. The share of each heir is

determined by Islamic principles, which take into account factors such as gender,

relationship, and the presence of other heirs.

The laws governing succession and inheritance in both Hindu and Muslim personal laws have

been subject to numerous debates and controversies. The Hindu law was criticized for being

discriminatory towards women, as they were not given equal rights to ancestral property. The

amendment in 2005 was a significant step towards addressing this issue. However, there are

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still some concerns regarding the implementation of the law and the persistence of traditional

patriarchal values.

Similarly, the Islamic law has also been subject to criticism for being gender-biased and

discriminatory towards women. There have been calls for reforms to the law to ensure equal

rights for women and to address issues such as the denial of inheritance to illegitimate

children and the exclusion of non-Muslims from inheritance. However, any attempts to

reform the law have been met with resistance from traditionalists and conservative elements

within the Muslim community.

The project aims to analyze the Hindu and Muslim personal laws of succession and

inheritance in India. The project aims to contribute to the ongoing discussions and debates

regarding the laws of succession and inheritance in Hindu and Muslim personal laws. It seeks

to provide a comprehensive and nuanced understanding of the laws, their historical evolution,

and their impact on society. It also aims to provide insights into the challenges and

opportunities for reforming these laws to ensure gender equality and social justice.

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Hindu Succession Law

The Hindu Succession Act, 1956 is an Act relating to the succession and inheritance of

property. This Act lays down a comprehensive and uniform system that incorporates both

succession and inheritance. It also deals with intestate or unwilled (testamentary) succession.

Therefore, this Act combines all the aspects of Hindu succession and brings them into its

ambit. The rules of Hindu personal law are heavily dependent on the two schools popularly

known as Mitakshara School and Dayabhaga School. According to the Mitakshara School,

there are two modes of devolution of property. These are:

 Devolution by survivorship

 Devolution of succession

The rule of survivorship is only applicable with respect to joint family property or

coparcenary property. On the other hand, succession rules apply to separate property held by

a person. However, the Dayabhaga school places emphasis on succession as the only mode of

devolution of property1.

Section 2 of this Act lays down the applicability of this Act. This Act is applicable to:

 Any person who is Hindu by religion or any of its forms or developments,

including a Virashaiva, Lingayat, or a Brahmo, Prarthna or Arya Samaj follower.

 Any person who is a Buddhist, Sikh, or Jain by religion.

 Any other person who is not a Muslim, Christian, Parsi, Jew, unless it is proved

that such person would not be governed by Hindu law or custom.

1
Diva Rai, ‘The Hindu Succession Act, 1956: An Ultimate Guide’ (iPleaders26 February 2020)
<https://blog.ipleaders.in/the-hindu-succession-act-1956/>.

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  This Act shall also extend to the whole of India. 2

However, this Section shall not apply to any Scheduled Tribes covered under the meaning

of Article 366 of the Constitution, unless otherwise directed by the Central Government by

notification in the Official Gazette.

The importance of the Act lies in the fact that it provides uniform rules for succession and

reduces the conflict that arose due to confusion over different rules based on the ideas of two

schools. Other features of the Act are:

 It makes a uniform system of inheritance and devolution of property that is equally

applicable to areas of Mitakshara and Dayabhaga school. The applicability of the

Act is explained thoroughly under Section 2 of the Act. However, it does not apply

to people governed by the Special Marriage Act, 1954.

 Another important feature of the Act is its overriding effect given under Section 4.

It abrogates all the earlier laws, customs, rules, etc that were applicable to Hindus

with respect to succession. Any Act or law that is inconsistent with the provisions

of this Act will be ineffective.

 It has also abolished the concept of impartible estate and its succession by special

mode.

 Earlier, the rule of survivorship in coparcenary property was only applicable to

male heirs. Female heirs were not recognised and given the right to inherit by

survivorship. But after the enactment of the Act, there has been a change in this

concept. Now, if a male dies intestate, leaving behind a female heir, the property

2
The Hindu Succession Act, 1956, Section 2

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 would devolve according to the provisions of this Act and not the rule of

survivorship.

 The Act provides order of succession based on the doctrine of propinquity, i.e.,

nearness or closeness of blood, and gives four different categories that are:

o Class I heirs

o Class II heirs

o Agnates (people related to each other either by blood or adoption only

through males)

o Cognates (people related to each other either by blood or adoption but

not through males)

 The rules of succession are different for the property of males and females. In the

case of a male who dies intestate, Class I heirs are usually given preference over

Class II heirs, and Class II heirs are further preferred over any other heirs.

 The Act further abolished the limited estate of women, and she is now the absolute

owner of her property, irrespective of its source. Earlier, she was a limited owner,

and the rights to her property were exercised by her husband, but now all the rights

are exercised by her, and she can even dispose of her property and take decisions.

 The Act also recognises the right of a child in the property who is in the mother’s

womb. (Section 20) It states that an unborn child in a woman’s womb would have

the right to inherit the property, assuming that he has been born before a person

dies intestate.

 The Act also clarifies that full-blood relations are preferred over half-blood

relations under Section 18. It further explains the concept of shares that are to be

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 divided per capita or per stirpes (division of shares in which share is given to a

branch of heirs as a whole) and such heirs inherit property as tenants in common.

(Section 19)

 It gives a list of people that are excluded from inheriting a property on different

grounds. However, it abolished all the grounds that excluded a person due to his

physical deformity or capability under Section 28. It also provides that the right of

an illegitimate child to inherit property is confined to the mother’s property and

not the father’s property.

DEVOLUTION OF INTEREST IN COPARCENARY PROPERTY

Coparcenary refers to a type of property ownership where multiple people inherit the same

property, and each person owns an undivided, transferable interest in the property. The term

coparcenary has mostly been replaced with tenancy in common. In Hindu law, it is a concept

that consists of those people in a Hindu joint family who inherit or have a common legal right

to their ancestral property3. Such people are called coparceners. These are the descendants of

a common ancestor, and they acquire their right to joint property by birth. The Act also

provides for the devolution of interest in coparcenary property, and there has been a change

in the position with respect to coparcenary property due to the Hindu Succession

(Amendment) Act, 2005.

3
‘Coparcenary’ (LII / Legal Information Institute)
<https://www.law.cornell.edu/wex/coparcenary#:~:text=Coparcenary%20refers%20to%20a%20type>.

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As mentioned earlier, the Mitakshara school recognises two modes of devolution of property,

i.e., by survivorship and by succession. The rule of survivorship applies to coparcenary

property, while succession applies to the separate or self-acquired property of a person.

Coparcenary property is an ancestral property of a Hindu joint family and consists of:

The concept of coparcenary ceases to exist once a partition is done in a Hindu joint family.

Section 6 of the Act provides for the devolution of interest in coparcenary property. Before

the Amendment of 2005, if a person died intestate, i.e., without making a will, his interest in

the coparcenary property would be governed and devolved according to the rule of

survivorship and not succession. It further prescribed that if a person who died intestate left

female heirs mentioned in Class I, then the rules of succession would be applicable, which

means that the rule of survivorship was not applicable to female heirs nor did they inherit

property if male heirs were present.

However, the position of the law with respect to coparcenary property has changed since the

2005 amendment. It is now a well-established law under Section 6 of the Act that daughters

are coparceners by birth and have the same and equal rights as sons. She has all the rights to

inherit coparcenary property like a son and would also have to fulfil the liabilities. All of this

is applicable after the commencement of the amendment Act. However, there will be no

change in any devolution done before 2004.

It also provides that such a property inherited by a female will be her own property, and she

will be an absolute owner and not a limited owner. It further states that a coparcenary

property will be devolved assuming that a partition has taken place with respect to such

property, in which the daughters will receive the same share as given to the sons.

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The Court, in the case of Ramesh Verma v. Lajesh Saxena4, held that the rules of succession

will be applicable to separate property acquired by a person on division by notional partition.

The Madras High Court, in the case of Nagammal v. N. Desiyappan5, clarified that unmarried

daughters are coparceners by birth and must be treated equally with sons and hence be given

an equal share like him. The Amendment Act also provides that the right of married girls to

seek partition is an absolute right and is not restricted by any limitation.

The Supreme Court, in the case of Prakash v, Phulavati6, held that the rights of daughters as

coparceners under the 2005 amendment were not limited to their date of birth. They are

entitled to be coparceners irrespective of their birth date.

4
1 SCC 257 (2017)
5
AIR 2006 Mad 265
6
(2016) 2 SCC 36

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HINDU SUCCESSION ACT, 1956

The Act has brought some major changes in the rules of succession of the property. One of

those is the manner of devolution of property. It has provided a uniform system of devolution

of a coparcenary property and self-acquired or separate property. The other changes are

discussed below.

SAPINDA RELATIONS ARE ABOLISHED

The present law has made several changes, and among those, it abolished the previous

Sapinda relations that used to inherit property out of love and affection. It has now mentioned

the list of heirs and divided them into four categories. People mentioned in such categories

like Class I heirs, Class II heirs, agnates and cognates are entitled to inherit the property.

CHANGES WITH RESPECT TO HINDU JOINT FAMILY

Earlier, coparceners did not have any right to make a will with respect to their share or

property. This right has now been recognised under Section 30. The rule of survivorship has

been replaced by uniform rules of succession that are different for males and females. The

Act also recognised the rights of daughters as coparceners and they would now have the same

rights as sons.

REMOVAL OF VARIOUS DISQUALIFICATIONS

The previous law had certain categories of persons who were disqualified from inheritance,

i.e., Lunatics, Idiots, Unchaste widows, Disqualifications based on physical deformities,

etc. However, such disqualifications have been abolished now, and the only 2

disqualifications under the Act are being a murderer or a person who has converted.

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Overall, the Act has been successful in bringing uniformity to the succession of property

among Hindus. It tried to rectify all the loopholes that existed by enacting the 2005

amendment. However, there is an ambiguity as to people to whom this act is not applicable.

One of the major impacts of this Act is that it emphasises equality between males and females

by recognising the rights of daughters as coparceners. Women now have the right to be a

coparcener, inherit property, be absolute owners, etc. The Act also abolished disqualifications

based on the physical deformity and mental depravity and instead disqualified murderers and

converted persons, which is reasonable.

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MUSLIM LAW

Every religion in Indian society is governed by its respective Personal law. These personal

laws also govern property rights. Inheritance and succession are the key aspects of

transferring property and wealth from one generation to the other. This article aims at visiting

and understanding the concepts and methods of inheritance in the succession and

administration under Muslim law.

The administration of an estate refers to the process of collecting information about the

property and debts of the person deceased, and distributing the remaining assets. The

administration of a deceased person’s estate is governed under the uniform law of the Indian

Succession Act, 1925. However, the substantive law (defining the rights and responsibilities

of citizens), still applicable, will be the Muslim Law.

The Islamic Law of inheritance is a combination of the pre-Islamic customs and the rules

introduced by the Prophet. Whatever is left after the death of a Muslim is his heritable

property. This property can be movable or immovable and ancestral or self-acquired. 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. In Abdul

Raheem vs. Land Acquisition Officer7, 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.

7
AIR 1989 AP 318

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NON-TESTEMANTARY AND TESTEMANTARY SUCCESSION UNDER MUSLIM

LAW

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 Shariat Law 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 succession8.

DISTRIBUTION OF PROPERTY

Under the Muslim law, distribution of property can be made in two ways – per capita or per

strip distribution. The 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 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.

8
Chikirsha Mohanty, ‘Inheritance under Muslim Law’ (lawrato.com16 August 2022)
<https://lawrato.com/indian-kanoon/muslim-law-law/inheritance-under-muslim-law-599> accessed 1 April
2023.

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RIGHTS OF FEMALES

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. However, it is generally found that the quantum of the share of a female

heir is half of that of the male heirs. The reason behind this is that under the Muslim law a

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.

RULES OF INHERITANCE OF PROPERTY

The general rule of inheritance states that the inheritance opens on the death of the person.

Nobody can claim any right in the property even if he is an heir.

BIRTH RIGHT: Any child born into a Muslim family does not get his right to property on

his birth. In fact, no such person becomes a legal heir and therefore holds no right till the time

of the 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.

RULE 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,

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English and Hindu laws of inheritance. However, this doctrine of representation does not find

its place in the Muslim law of inheritance 9.

RULE OOF DISTRIBUTION: Vesting of property takes place immediately on the death of

the propositus. 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. It is noteworthy that the Shia law recognises the principle

of representation for a limited purpose of calculating the extent of the share of each person.

Moreover, under the Shia law, this rule is applicable for determining the quantum of the share

of the descendants of a pre-deceased daughter, pre-deceased brother, predeceased sister or

that of a pre-deceased aunt.

EXTENT OF LIABILITY OF HEIRS

The Qur’anic principle, “There is no inheritance until after the payment of the debt” is an

integral part of the Muslim law of Inheritance.

Under Muslim law, the property is not jointly held by heirs. Similarly, the debt that they

inherit from the person deceased is also divided amongst all the heirs according to the

9
Ramendra Singh, ‘Law of Succession in Muslim Law’ (legalserviceindia.com)
<https://www.legalserviceindia.com/legal/article-2915-law-of-succession-in-muslim-law.html> accessed 1 April
2023.

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proportion of the estate that they inherit. They are separately responsible for paying that and

no one heir is said to be paying on behalf of the other co-heir.

In Muhammad Muin-Ud-Din And Anr. vs Musammat Jamal Fatima 10, 1870, it was held by

the Court that upon the death of a Muslim owner the heir, but not the estate, become

answerable for the debts. Hobhouse, J. observed that “..it is the heirs themselves who are

answerable and that to the extent of any asset which they may have received.” This means

that along with the estate, the heirs also inherit the debt. They may also be told by the court to

pay the amount to protect the rights of the Creditor11.

HANAFI(SUNNI) LAW OF INHERITANCE

Hanafi law of inheritance only focuses on relatives who have descended from a male member

who may be in relation to the deceased person. Each heir holds the property separately,

holding a definite share in the estate.

The Sunni law classifies the heirs of the inheritance into three groups:

 Quota Heirs beneficiaries – They take an assigned share of the state and most first

in line. Includes daughters, parents, grandparents, spouses, brothers, and sisters,

etc.

10
63 Ind Cas 883
11
‘Sunni Law of Inheritance’ (Lexpeeps29 October 2020) <https://lexpeeps.in/sunni-law-of-inheritance/>
accessed 1 April 2023.

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  Residuaries – Inherit property after the shares have been distributed in Quota-

heirs. They include both male and female members of the family which may be in

the second line of the bloodline.

 When a person has no direct relatives the property goes to the state.

The law also fixes shares for the portion of the estate that the heir is entitled to:

 The wife is entitled to one-fourth of the share if the couple has no lineal

descendent, and one-eighth if they do.

 Husband takes half the share when there exists no lineal descendent and one-fourth

if they do.

 Sole daughter is entitled to half the property. In the case of more than one

daughter, all the daughters jointly get two-thirds of the estate.

 If both, daughter and son exist then the daughter ceases to be a sharer and becomes

a residuary sharer instead. Here, a son is entitled to double of what a daughter

inherits.

SHIA LAW OF INHERITANCE

The Shia Law divides heirs into two groups – by blood relations (consanguinity) and by

marriage (affinity). The heirs by consanguinity are also termed as heirs by Nasab, while the

heirs by affinity are heirs by Sabab. Based on blood relations, it is further divided into three

categories:

1. First category consists of parents and children and other lineal descendants

2. Grandparents and brother and sisters and their descendants

3. Paternal and Maternal uncles and aunts and their children

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In these three classes, there is no difference between the male and female heirs except that a

male heir will have double the share than that of the female. This can be contrasted with the

Sunni law of inheritance where the daughters are excluded from inheritance.

In respect to the third class of legal heirs in Shia Law, there is no preference on the basis that

someone is linked to a deceased from the paternal or maternal side. As long as they are at the

same degree of relationship, they will share in inheritance irrespective of their gender and

origin of relationship to the deceased 12.

The partner is never excluded from the succession, he/she inherits together with the nearest

blood relation as may be applicable by the chart mentioned above. A husband is entitled to

one-fourth of the property in the presence of a lineal descendant, and half the property in

absence. A wife, on the other hand, is entitled to one-eighth of the property in presence of a

descendant and one-fourth in absence13.

12
Nupur, ‘Succession under Muslim Law - Explained’ (WritingLaw30 June 2021)
<https://www.writinglaw.com/succession-under-muslim-law/> accessed 1 April 2023.
13
Diganth Raj Sehgal, ‘Succession and Administration under Muslim Law’ (iPleaders9 February 2021)
<https://blog.ipleaders.in/succession-administration-muslim-law/>.

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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.

WIDOW Under Muslim law, no widow is excluded from the succession. 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. However, a widow who has children or grandchildren is

entitled to one-eighth of the deceased husband’s property.

CHILD IN THE WOMB A child in the womb of its mother is competent to inherit only if it

is born alive. A child in embryo is regarded as a living person and, as such, the property vests

immediately in that child. But, if such a child in the womb is not born alive, the share already

vested in it is divested and, it is presumed as if there was no such heir (in the womb) at all.

ESCHEAT Where a deceased Muslim has no legal heir under Muslim law, his properties are

inherited by Government through the process of escheat.

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DIFFERENCE OF RELIGION A non-Muslim could not inherit from a Muslim but the

Caste Disabilities Removal Act of 1850 does away in India with the exclusion of a non-

Muslim from the inheritance of the property14.

The succession act for Muslims in India is not singular but a composition of many individual-

laws. They apply differently to people according to the sect that they belong to. There are

many differences between Sunni and Shia laws of inheritance which have been touched upon

in this article. Moreover, it is significant that the general principles of Muslim law apply

evenly to the whole community. The laws are not completely codified, but they are a result of

customs and practices that have been followed over centuries in the Islamic community all

around the world. The testate and intestate successions are both distinct and follow separate

processes for the devolution of inheritance.

14
Muhammad, Busari. (2020). The Islamic Law of Inheritance: Introduction and Theories.

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 CONCLUSION

In conclusion, the study of succession and inheritance in Hindu and Muslim law provides a

deep insight into the diverse religious and cultural practices in India. Both Hindu and Muslim

law have evolved over time and are based on their respective religious beliefs and customs.

While there are some similarities in the two systems, there are also some significant

differences.

The research highlights the need for a more comprehensive understanding of the legal

principles of inheritance and succession in both Hindu and Muslim law. It also underscores

the importance of examining the socio-cultural context in which these laws operate,

particularly with respect to gender equality and the rights of women.

In conclusion, the study of succession and inheritance in Hindu and Muslim law is crucial to

understand the nuances of the Indian legal system. The findings of this study have the

potential to inform and shape future policies and legal reform initiatives in this area, ensuring

that inheritance and succession laws reflect the evolving needs and values of contemporary

Indian society.

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