Principles of Inheritance under Muslim Law

By | May 12, 2020
Principles of inheritance under Muslim Law

Principles of Inheritance under Muslim Law Overview

Introduction: Inheritance under Muslim Law

This Article revolves around analyzing the Principles of inheritance under Muslim Law. The law related to inheritance derives its principles from four principal sources of Islamic law.

They are the Holy Quran, the Sunna i.e. the practice of the Prophet, the Ijma i.e. the consensus of the learned men of a community on a particular point of law and the Qiya i.e. the analogical deductions of what holds just and right and in line with the principles of God.[1] 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.[2]

Succession under Muslim Law in the absence of a will, i.e., non-testamentary succession is governed by the Muslim Personal Law (Shariat) Application Act, 1937. On the other hand, in case of testamentary succession when the deceased has made a will, the Shariat law of Muslim applies for the inheritance of the property of the deceased which is generally practised by Shia and Sunni Muslims. Moreover, in case of testamentary succession, for immovable property specifically located in the state of West Bengal or property falling under the jurisdiction of the Bombay and Madras High Courts, the succession is conducted as per the Indian Succession Act, 1925.

Under the Muslim Law of inheritance, there is no specific difference between the Immovable Property or movable property and incorporeal or corporeal properties. Because of the lack of distinction between the movable and immovable property and flexible definition of property under the Muslim Law, all types of properties owned by the deceased are subject to inheritance. Though all types of properties owned by the deceased are liable to be inherited the portion of the property which can actually be inherited is determined only after the appropriations like debt and the expenses of the funeral are paid out of such properties.

Once these appropriations are made, the remaining property can now be disposed of off by inheritance. Unlike the Hindus, there is no distinction between the self-acquired property and the ancestral property under the Muslim law of Inheritance. Therefore, when a Muslim person dies, all of his property can be inherited to his heirs irrespective of that he himself acquired that property or received it from his ancestors.

I. Types of Heirs

There are mainly two types of heirs under the Muslim Law of Inheritance which is 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.

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

The share taken by each sharer will vary in certain conditions. For instance, a wife takes 1/4th of share in a case where the couple is without lineal descendants, and a one-eighth share otherwise. A husband (in the case of succession to the wife’s estate) takes a half share in a case where the couple is without lineal descendants, and a one-fourth share otherwise. A sole daughter takes a half share. Where the deceased has left behind more than one daughter, all daughters jointly take two-thirds. If the deceased had left behind a son(s) and daughter(s), then, the daughters cease to be sharers and become residuary instead, with the residue being so distributed as to ensure that each son gets double of what each daughter gets.

II. Distribution of Property under Muslim Law

Under the Muslim Law of Inheritance, the distribution of the property can be done in two ways which are per capita or per strip distribution.

Per Capita Distribution: The per capita distribution method is majorly used in Sunni law. According to this method, the estate left over by the ancestors gets equally distributed among the heirs. In per capita distribution, the property is divided equally among all the heirs. This means that the number of heirs of the deceased determines the amount of share for each heir in the property of the deceased. The branch of the family to which the heir belongs to does not influence the inheritance that he or she is subjected to receive.[3]

Per Stripes Distribution: Per stripes distribution of property is followed by the Shia branch of Islam. Under per stripes distribution, the property is distributed among the heirs of a branch (strip) of the family. 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.[4]

III. General Principles of Inheritance under Muslim Law

The general Principles associated with Muslim Law of Inheritance are as follows:

Nature of the Heritable Property: The meaning of heritable property is that property which is available for an inheritance to legal heirs. After a Muslim dies, his properties are used for paying the funeral expenses, debts and the wills. After the payment of these expenses, the remaining property is recognized as heritable property.

For the purpose of inheritance, the Muslim Law of Inheritance does not make any distinction between the movable and immovable property or corporeal and incorporeal property. Any property which is in ownership of the deceased at the time of his death would be considered as Heritable Property. However, under the Shia Law, a childless widow is entitled to 1/4th share of the movable property owned by the deceased at the time of his death.

Joint or Ancestral Property: The Muslim Law of Inheritance does not recognize the concept of a joint family or of coparcenary property. In case the Muslim dies, his properties devolve on his heirs in a definite share of which the heir becomes the absolute owner. Similarly, when such legal heir dies, the properties owned by him will devolve to his legal heirs and the same process continues. Also, there is no distinction between the Self-Acquired property and the Ancestral Property.

No Birthright under the Muslim Inheritance Law: Islamic Law follows the principle of ‘nemo est haeres viventis’ 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.[5] 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.

Under the Hindu law, a coparcenary gains 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 the right to property by birth either.

Doctrine of Representation: The Doctrine of Representation is a well-recognized doctrine under the Roman, English and Hindu laws of Inheritance. According to the Doctrine of Representation, the son of a predeceased son represents his father for the purpose of inheritance. The Muslim Laws of Inheritance does not recognize the Doctrine of Representation because, under Muslim Law, the nearer excludes the remoter. In simple words, if there are two heirs who claim the inheritance for a common ancestor, the heir who is neared to the deceased will exclude the remoter.

The justification is given by the Muslim Jurists for denying the right of representation on the ground that a person has an inchoate right to the propriety of his ancestor until the death of the ancestor. Subsequently, they argue that there can be no claim through a deceased person in whom no right could have been vested by any possibility.

Rights of Females: Both Male and Female are equal under the Muslim Law of Inheritance and male are git given any preferential right of inheritance over the right inheritance. However, generally, the share of the male is double the share of the female. 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.

Rights of a Widow: Widows are also entitled to the property in a succession as per Muslim law. 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. If a Muslim man marries during an illness and subsequently dies of that medical condition without brief recovery or consummating the marriage, his widow has no right of inheritance. But if her ailing husband divorces her and afterwards, he dies from that illness, the widow’s right to a share of inheritance continues until she remarries.

Right of Inheritance of a Child in Womb: A child in the womb of its mother is competent to inherit provided it is born alive. A child in the 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.

Right of Inheritance of Step-Children: The Step Child is entitled to any right to inherit the property of their step-parents. In a similar manner, the step-parents too do not inherit the property of their step-children. Hence, the Step-father and the step-son are not competent to inherit the property of each other. But the Step-Child is competent to inherit the property of his Natural Father or Natural Mother. However, Step-Brothers can inherit each other’s property.

Escheat: Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by Government through the process of escheat.

IV. Summary And Conclusion: Inheritance under Muslim Law

The Holy Quran states ‘Allah has purchased from believers their persons and their wealth in lieu of Jannah’. Man is a trustee of the wealth that he owns for the duration of his life. When the term of his life ends, his trusteeship over his wealth and property expires. After his death, his property should be redistributed according to the directions given by Allah Taala. Directives regarding the distribution of wealth and property of the deceased after his death are provided under the Holy Quran.

The Inheritance Laws mainly deal with two key issues:

  1. Provide Laws pertaining to distribution of wealth amongst heirs, so heirs don’t fight; and
  2. Ensuring that a just system can be established and wealth is not accumulated into a single entity.

The Muslim Law of Inheritance is based on these following considerations:

  1. Break up the concentration of wealth and distribution of wealth in society.
  2. Endorse and Consolidate strong family system by justly distributing wealth amongst the heirs.
  3. Respect the Right of ownership of an individual that he earned through the legal means and it does not allow the individual or government to confiscate the property after his demise.
  4. Provide peace of mind that after your demise, your family will be given the just right of inheritance
  5. Special focus is given to women’s right of inheritance as the women are denied their rights under other systems.

[1] Legal Resolved (2018) The Muslim Law of Inheritance: Legal Resolved.

[2] Harsha Asnani (2016) ‘What are the Rules Governing Inheritance of Property under Muslim Law’.

[3] Gabber (2020) Per Stirpes vs Per Capita Estate Distributions,: The Balance.

[4] Wendel, Peter (2010). Wills, Trusts, and Estates (8th ed.). New York: Aspen. p. 30. Julie

[5] Shivi (2018) Inheritance Under Muslim Laws: Legistify.

  1. Concept of Property under Islamic Law
  2. Ten Landmark cases on Muslim Law

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