When does inheritance open for the first time under Muslim Law? Discuss the main rules of succession.

Question: When does inheritance open for the first time under Muslim Law? Discuss the main rules of succession. [BJS 2017]

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Answer

Inheritance in any religion represents an important way of transferring wealth from one generation to the next generation. According to Islamic law, inheritance combines pre-Islamic traditions and regulations that the Prophet instituted. Hanafi (Sunni) or Shia schools/sects of personal law generally govern Muslims. When a Muslim passes away, four tasks are typically completed: covering funeral and burial costs; paying debts owed by the deceased; determining the deceased's estate's value (which can only be up to one-third of the property), and distributing the remaining assets to the deceased's family in accordance with Shariah law.

Inheritance opens only after the death of a Muslim and no person can be an heir of a living person. Muslim law does not recognize the doctrine of representation and as such nearer heirs exclude the remoter heirs from inheritance. The distribution of the assets is per-capita under Sunni law which means an heir does not represent the branch from which he inherits. Muslim law recognizes two types of heirs which are sharers and residuary.

Sharers are entitled to certain shares in the deceased's property and 12 in number. Residuary takes up a share in the property which is left over after shares are taken by sharers. Residuary takes the entire estate in absence of sharers and in absence of both sharers and residuary the estate devolves into distant kindred. The properties of a Muslim after his death devolve on his heirs in definite share and each heir becomes an absolute owner. [Rahisuddin v. Inheritance in Any Religion, CS No. 76456/2015]

The whole estate of a deceased Mahommedan if he has died intestate, or so much of it as has not been disposed of by Will, if he has left a Will, devolves on his heirs at the moment of his death, and the devolution is not suspended by reason merely of debts being due from the deceased. The heirs succeed to the estate as tenants-in-common in specific shares.

Unlike Hindu Law, the estate of a deceased Mohammedan, if he has died intestate, devolves on his heirs at the moment of his death. Under Mohammedan Law, the birthright is not recognized. The right of an heir apparent or presumptive comes into existence for the first time on the death of the ancestor, and he is not entitled until then to any interest in the property to which he would succeed as an heir if he survived the ancestor. There is no joint tenancy in Mohammedan law and the heirs are only tenants-in-common. Therefore, an heir can claim partition in respect of one of the properties held in common without seeking partition of all the properties.

In Abdul Raheem v. 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 stand extinguished, and stands vested in other persons.

General principles of inheritance

Following are the general principles followed while under Islamic law:

1. Nature of Property: After paying for burial costs, debts, and legacies, the deceased's property only becomes inheritable. All of the remaining assets, whether they are transportable or not, are inheritable. There is no distinction in Islamic law between corpus and usufruct, physical and immaterial property. The terms "shared family property" and "separate property" don't exist.

2. The Doctrine of Representation: The doctrine of representation relates to the idea that a pre-deceased parent should be represented by his son in order for the son to inherit the father's possessions. However, Islamic law does not acknowledge this notion. In Muslim law, the closest heir trumps the farther one. This means that if two people make claims for an inheritance, it will be decided based on how close they were to the deceased.

3. No birthright: Islamic inheritance can only be availed upon the death of an ancestor. A person cannot be an heir of a living person. The right of inheritance, thus, is not a birthright. Until the death of an ancestor, an heir apparent is a mere spes successionis (chance of succession).

4. The Succession of Murdered Deceased: Whether a murder was committed on purpose or by mistake, the person who caused the death of the deceased is not entitled to inherit anything. Any unlawful act by the heir apparent that results in the death of his ancestor prevent him from inheriting the ancestor's assets.

5. Illegitimate child: An illegitimate child is regarded as the mother's only child. Because of this, neither it nor the father may inherit from the other. Only the child and its maternal relatives have inheritance rights.

6. Missing person: Islamic law is ambiguous as to how long a missing person's share should be held. This is due to the fact that it is unknown if he is living or dead. According to Section 108 of the Indian Evidence Act of 1872, if it is shown that a person has been missing for seven years without being seen or heard from, the onus of establishing his or her existence is on the individual to do so. In other words, if a person goes seven years without making contact, they are legally deemed to be dead, and their property begins to be inherited.

7. Apostasy: According to Islamic law, anyone who converts to a religion other than Islam or who becomes an apostate is not entitled to inherit the possessions of a deceased Muslim. However, this disability was eliminated by the Caste Disabilities Removal Act of 1850, Section 3. In India, a deceased Muslim's property may be inherited by an apostate; however, the apostate's descendants are not allowed to inherit.

8. Escheat: When a person passes away without any successors, the State takes over ownership of their property. Every decedent is deemed to have left behind the State as their successor.

9. Child in the womb: A child in the womb is considered to be a living person provided that he is born alive. Hence, a child in the womb can inherit the property of the deceased.

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