Inheritance under Muslim Law

According to the Indian legal system, the rules governing inheritance under Muslim law vary depending on the type of property involved. The Muslim Personal Law (Shariat) Application Act, 1937, for example, will apply in the situation of non-testamentary succession. Contrarily, in the event of testamentary succession (which means the individual made a will before to passing away), the Muslim law of Shariat governs the inheritance of the deceased’s property and is equally applicable to Shia and Sunni religions.

WHAT ARE THE SOURCES OF MUSLIM LAW OF SUCCESSION 

Four main sources of Islamic law serve as the foundation for the Muslim Law of Inheritance. The list is as follows.

1. The Book of the Holy Quran.
2. The Sunna is also known as an example of the Prophet’s actions.
3. The Ijma, is also known as the general agreement among the educated members of the society over the course of action that should be taken regarding a certain issue.
4. The Qiya, is a logical inference of what God has established as the proper and fair course of action in line with the moral precepts that he has established. 

TYPES OF HIERS 

The Sharers and the Residuary and Distant Kindred are the different categories of heirs recognized by Muslim law. 

1. The individuals who are legally entitled to a portion of the deceased person’s property are known as sharers.
2. After all of the sharers have taken their portion of the property, the remaining portion of the property will be divided among the residuary.
3. The term “Distant Kindered” refers to relatives by blood who are neither sharers nor heirs of the estate.
4. Sharers

There is a total of 12 Sharers, and their names are as follows:

1. Husband, (relations by the affixing of marriage)
2. Wife, (relations by the affixing of marriage) (relations by affixing of marriage)
3. Daughter, (female agnatic descendants)
4. Daughter of a son (or son’s son or son’s son or son’s son and so on) – She must be at least 18 years old (female agnatic descendants)
5. The Father, (male ancestors)
6. The Paternal Grandfather, (male ancestors) (male ascendants)
7. Mother, (female ascendants)
8. Grandmother,
9. Mother, (female ascendants)
10. Full sister, (female agnatic collaterals)
11. Consanguine sister, (female agnatic collaterals)
12. Uterine sister, and (cognatic collaterals)

The share taken by each sharer will vary in certain conditions. 

• For example, a wife receives one-fourth of the share if the couple does not have any lineal descendants, but only one-eighth of the share if the couple does have lineal descendants.
• In the event that a husband succeeds to his wife’s estate, he is entitled to one-half of the estate if the couple does not have any lineal descendants, but only one-fourth of the estate in any other circumstance.
• A sole daughter is entitled to one-half of the inheritance. In cases where the deceased had more than one daughter, the surviving daughters will split the inheritance in two-thirds proportions.

Note- If the deceased had sons as well as daughters, then the daughters would no longer be considered sharers but would instead be considered residuaries, and the residue would be divided up in such a way as to guarantee that each son would receive twice as much as each daughter would.

2. Residuary

In the event that there are no Sharers or if there are Sharers but there is a residue left over after fulfilling their claims, the whole inheritance or the residue, whichever is applicable, is distributed among the Residuaries in the order that is laid out.

I Descendants: i. Son ii. Son’s son

II Ascendants: i. Father. ii. True Grandfather

III Descendants of father: i. Full brother. ii. Full sister. iii. Consanguine brothers. iv. Consanguine sister. v. Full brothers son vi. Consanguine brother’s son vii. Full brother’s sons’ son viii. Consanguine brother’s son’s son

IV Descendants of true Grandfather i. Full paternal uncle ii. Consanguine Paternal Uncle iii. Full paternal uncle’s son iv. Consanguine Paternal uncle’s son v. Full paternal uncle’s son’s son vi. Consanguine paternal uncle’s son’s son vii. Full paternal uncle’s son’s son viii. Consanguine paternal uncle’s son’s son ix. Consanguine paternal uncle’s son’s son x. Male descendants or more remote true grandfathers

3. Distant Kindred

In the event that there are no shares or residuary, the inheritance is given out to various distant relatives.

If there is just one sharer, and that sharer is a husband or wife, and there is no other connection that belongs to the class of Residuaries, then the husband or wife will receive their whole share, and the rest of the estate will be distributed among Distant Kindred.

Four different categories are considered to be distant kin. These categories are as follows: (1) Descendants of the deceased, other than sharers and residuary; (2) Ascendants of the deceased, other than sharers and residuaries; (3) Descendants of parents, other than sharers and residuaries; and (4) Descendants of ascendants how highsoever other than residuaries.

It is customary for the descendants of the dead to take precedence over the ascendants of the deceased, the ascendants of the deceased to take precedence over the descendants of the parents, and the descendants of the parents to have preference over the descendants of the ascendants.

The following is a list of Distant Kindred comprised in each of the four

classes:

I. Descendants of the deceased:

1. Daughter’s children and their descendants.

2. Children of son’s daughters h.l.s. and their descendants.

II. Ascendants of the deceased:-

1. False grandfathers h.h.s. (a male ascendant however distant between whom and deceased a female intervenes.)

2. False grandmothers h.h.s.

III Descendants of parents:-

1. Full brothers’ daughters and their descendants.

2. Can. brothers’ daughters and their descendants.

3. Uterine brothers’ children and their descendants,

4 Daughters of full brothers’ sons hJ.s. and their descendants.

5. Daughters of the con. brothers tons his, and their descendants.

6. Sisters’ (f, c., or Ut.) children and their descendants.

IV. Descendants of immediate grandparents (true or false):—.

1. Full pat, uncles’ daughters and their descendants.

2. Con. pat. uncles’ daughters and their descendants.

4. Uterine pat. uncles and their children and their descendants.

5. Daughters of full pat. uncles’ son h.l.s and their descendants.

6. Daughters of a con. pat. uncles’ sons hi.s and their descendants.

7. Pat. aunts (f., c., or Ut.) and their children and their descendants.

8. Mat. uncles and aunts and their children and their descendants and descendants of remoter ancestors h.h.s. (true or false). 

For non-Testamentary Succession- Application of Muslim Personal Law (Sharia) Act of 1937.

Testamentary Succession- If a Muslim dies with a valid will, known as “testate,” then his or her heirs will be distributed according to the Shariah law that applies to Shias and Sunnis, respectively.

Exception- For Muslims living in West Bengal, Chennai, and Bombay, the Indian Succession Act of 1925 governs the transfer of ownership of real estate. 

DISTRIBUTION OF PROPERTY 

There are two ways to distribute property in accordance with the Muslim Law of Inheritance i.e., Per Capita and Strip Distribution

Per Capita- (used in Sunni Law) – Inheritors share equitably in the inheritance of their forebears. The number of heirs determines how much each individual will get.

Per strip- (used in Shia Law)- Each generation, such as the first, the second, and so on, receives a certain portion of the estate.

THE DOCTRINE OF REPRESENTATION 

Those who are farther removed from the deceased are disinherited by those who are closest to them under Muslim law. If two people can trace their lineage back to the same ancestor, the one who is physically closest to the ancestor will get the inheritance. Since A is closer to P in generational degree than E is, A will remove E.

Protection of Women’s Rights There is no observable difference between men and women, however, women often earn less per hour than men. Because she gets spousal support in the form of Mehr and alimony.

A Muslim widow who does not have any children is entitled to one-fourth of her late husband’s estate.

When she has children or grandchildren, she gets one-eighth of her late husband’s estate.

Note- A Muslim man’s wife forfeits all claims to his inheritance if he marries while ill and dies before they can consummate their marriage. She may inherit till she remarries if her sick husband or wife divorces her and then dies.

Other important Points

The child has a chance to inherit the estate if he or she is born healthy. If a Muslim passes away without a direct descendant, his estate will escheat by the state. According to Islamic law, a Muslim’s ability to inherit property is terminated when he marries under the Special Marriage Act of 1954. After death, no Muslim’s heirs would be entitled to inherit such a person’s possessions under Islamic law. The Indian Succession Act of 1925, rather than Islamic law, governs the transfer of property ownership among Muslims. Section 51 of the Mulla Law on Inheritance states that there is no distinction between inherited and personally earned property.