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 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.
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.
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, English and Hindu laws of inheritance. However, this doctrine of representation does not find its place in the Muslim law of inheritance.
Rule of 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, pre-deceased sister or that of a pre-deceased aunt.
GROUNDS OF DISQUALIFICATIONS
Disqualifications which debar the heirs to succeed the property of the intestate are—
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.
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.
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.
In Abdul Hammed Khan vs. Peare Mirza, 1935 I.L.R. 10 Luck. 550 it was held that a childless widow, in the absence of other heirs, was entitled to inherit her share and rest of the property including the land, of her husband by the application of the doctrine of return.
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.
Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by Government through the process of escheat.
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 property.
Theory of Propinquity
Propinquity means nearness in blood. In determining the preferential claims of the heirs, the Shias adopt the principles of consanguinity. The rule that nearer in degree excludes the more remote is applied to kindred of the same class only. This theory of propinquity is fully recognized by Shias but partially recognized by the Sunnis.
- In Hakim Rehman vs. Mohammad Mahmood Hassan, AIR 1957 Pat 559, it was held that upon the death of a Mohammedan, the whole estate devolves upon his heirs at the moment of his death and the heirs succeed to the estate as tenants-in-common in specific shares.
- In Rukmanibai vs. Bismillavai, AIR 1993 MP 45, it was held that where a person, who has converted to Islam, dies leaving behind his daughter only and no residuary, shall be entitled to her share as well as residuary share in the property of the deceased.
- In Shukurllah vs. Zohra Bibi, AIR 1932 All. 512 it was held that each heir of the Mohammedan is liable for the debt of the deceased to the extent only of a share of the debts proportionate to his share of the estate.
By – Shubhi Pandey
Rani Durgavati Vishwavidyalaya
- Aqil Ahmad – Mohammedan Law (Revised by Prof. Iqbal Ali Khan)
- Mulla’s Principles of Mohamedan Law
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