GENERAL RULES OF MUSLIM

SUCCESSION

(1) Nature of the Heritable Property:

Heritable property is that property which is available to the legal heirs for
inheritance. After the death of a Muslim, his properties are utilised for the
payment of funeral expenses, debts and the legacies i.e. wills, if any. After
these payments, the remaining property is called heritable property. Under
Muslim law, every kind of property may be a heritable property.

For purposes of inheritance, Muslim law does not make any distinction
between corpus and usufruct or, between movable and immovable, or,
corporeal and incorporeal property. Under English law, there is some
difference in the inheritance of movable and immovable property.

But, under Muslim law there is no such distinction; any property, which was in
the ownership of the deceased at the moment of his death, may be the
subject-matter of inheritance.

Shia Law:
Under the Shia law, a childless widow is entitled to get her share (1/4) in the
inheritance only from the movable property left by her deceased husband.

(2) Joint or Ancestral Property:

The concept of a joint family or of coparcenaries property (as is recognised
under Hindu law) is not known to Muslims. Whenever a Muslim dies, his
properties devolve on his heirs in definite share of which each heir becomes
an absolute owner. Subsequently, upon the death of such heir, his properties
are again inherited by his legal heirs, and this process continues.

Thus, unlike Hindu law, there is no provision for any ancestral or joint-family
property. Accordingly, under Muslim law of inheritance, no distinction has
been made between self-acquired and ancestral property. All properties,
whether acquired by a Muslim himself or inherited by his ancestors, are
regarded as an individual property and, may be inherited by his legal heirs.
(3) No Birth-Right:
Inheritance opens only after the death of a Muslim. No person may be an heir
of a living person (Nemoest haeres viventis). Therefore, unless a person dies,
his heirs have no interest in his properties. Unlike Hindu law, the Muslim law
of inheritance does not recognise the concept of ‘right by birth’
(Janmaswatvavad).

Under Muslim law, an heir does not possess any right at all before the death
of an ancestor. It is only the death of a Muslim which gives the right of
inheritance to his legal heirs.

As a matter of fact, unless a person dies, his relatives are not his legal heirs;
they are simply his heir-apparent and have merely a ‘chance of succession,
(spes successions). If such an heir-apparent survives a Muslim, he becomes
his legal heir and the right of inheritance accrues to him. If the heir-apparent
does not survive a Muslim, he cannot be regarded an heir and has no right to
inherit the property.
(4) Doctrine of Representation:
Doctrine of representation is a well known principle recognised by the Roman,
English and Hindu laws of inheritance. Under the principle of representation,
as is recognised by these systems of laws, the son of a predeceased son
represents his father for purposes of inheritance. The doctrine of
representation may be explained with the help of the diagram given below. P
has two sons A and B. A has got two sons С and D and В has a son E.

During the life of P, his family members are his two sons (A and B), and three
grandsons (C, D and E). Unfortunately, В pre-deceases P, i.e. В dies before
the death of P. Subsequently, when P also dies, the sole surviving members
of the family of P are A and three grandsons, C, D and E.
Under the doctrine of representation, E will represent his pre-deceased father
В and would be entitled to inherit the properties of P in the same manner as В
would have inherited had he been alive at the time of P’s death.
But, Muslim law does not recognise the doctrine of representation. Under
Muslim law, the nearer excludes the remoter. Accordingly, in the illustration
given above, E will be totally excluded from inheriting the properties of P.
Both, under Shia as well as under Sunni law, E has no right to inherit the
properties of P. The result is that E cannot take the plea that he represents his
pre-deceased father (В) and should be substituted in his place.
Under Muslim law, the nearer heir totally excludes a remoter heir from
inheritance. That is to say, if there are two heirs who claim inheritance from a
common ancestor, the heir who is nearer (in degree) to the deceased, would
exclude the heir who is remoter. Thus, between A and E, A will totally exclude
E because A is nearer to P in degree whereas, E belongs to the second
degree of generation. The Muslim jurists justify the reason for denying the
right of representation on the ground that a person has not even an inchoate
right to the property of his ancestor until the death of that ancestor.
Accordingly, they argue that there can be no claim through a deceased
person in whom no right could have been vested by any possibility. But, it
may be submitted that non-recognition of principles of representation under
the Muslim law of inheritance, seems to be unreasonable and harsh. It is cruel
that a son, whose father is dead, is unable to inherit the properties of his
grandfather together with his uncle.
(5) Per-Capita and Per-Strip Distribution:
Succession among the heirs of the same class but belonging to different
branches may either be per-capita or per-strips. In a per-capita distribution,
the succession is according to the ‘number of heirs’ (i.e. heads). Among them
the estate is equally divided; therefore, each heir gets equal quantity of
property from the heritable assets of the deceased.
On the other hand, in a per strip distribution, the several heirs who belong to
different branches, get their share only from that property which is available to
the branch to which they belong. In other words, in the stripital succession,
the quantum of property available to each heir depends on the property
available to his branch rather than the number of all the heirs.
Under Sunni law, the distribution of the assets is per-capita. That is to say an
heir does not in any respect represent the branch from which he inherits. The
per-capita distribution may be illustrated by the following diagram.

M has got two sons A and B. A has three sons, S1, S2 and S3. В has two
sons S4 and S5. When M dies there are two branches of succession, one of A
and the other of B. Suppose, A and В both die before the death of M so that
the sole surviving heirs of M are his five grandsons.
Now, under the per-capita scheme of distribution (as recognised under Sunni
law) the total number of claimants (heirs) is five and the heritable property
would be equally divided among all of them irrespective of the branch to which
an heir belongs.
Therefore, each of them would get 1/5 of the total assets of M. It may be
noted that under Sunni law the principle of representation is recognised
neither in the matter of determining the claim of an heir, nor in determining the
quantum of share of each heir.
Shia Law:
Under the Shia law, if there are several heirs of the same class but they
descend from different branches, the distribution among them is per strip.
That is to say, the quantum of property inherited by each of them depends
upon the property available to that particular branch to which they belong. In
the above-mentioned illustration, A and В constitute two branches, each
having 1/2 of M’s property. Both, A and В pre-decease M.
But, the quantum of property available to each of their branch would remain
the same. Therefore, the surviving heirs of A namely, S1, S2, 53 would get
equal shares out of 1/2 which is quantum of property available to the branch
of A. Thus S1, S2 and S3 would get 1/6 each. Similarly, the quantum of
property available to the branch of В is also 1/2 but the descendants from this
branch are only two. Accordingly, the 1/2 property of В would be equally
shared by S4 and S5.
Therefore, 54 and S5 would get 1/4 each. It is significant to note that for a
limited purpose of calculating the share of each heir, the Shia law accepts the
principle of representation. Moreover, under the Shia law this rule is
applicable for determining the quantum of share also of the descendants of a
pre-deceased daughter, pre-deceased brother, pre-deceased sister or that of
a pre-deceased aunt.
(6) Female’s Right of Inheritance:
Males and females have equal rights of inheritance. Upon the death of a
Muslim, if his heirs include also the females then, male and female heirs
inherit the properties simultaneously. Males have no preferential right of
inheritance over the females, but normally the share of a male is double the
share of a female.
In other words, although there is no difference between male and female heir
in so far as their respective rights of inheritance is concerned but generally the
quantum of property inherited by a female heir is half of the property given to
a male of equal status (degree).
The principle that normally the share of a male is double the share of a female
has some justification. Under Muslim law, while a female heir gets (or hopes
to get in future) an additional money or property as her Mehr and
maintenance from her husband, her male counterpart gets none of the two
benefits. Moreover, the male heir is primarily liable for the maintenance of his
children whereas, the female heir may have this liability only in an
extraordinary case.
(7) A Child in the Womb:
A child in the womb of its mother is competent to inherit provided 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.
(8) Primogeniture:
Primogeniture is a principle of inheritance under which the eldest son of the
deceased enjoys certain special privileges. Muslim law does not recognise the
rule of primogeniture and all sons are treated equally.
However, under the Shia law, the eldest son has an exclusive right to inherit
his father’s garments, sword, ring and the copy of Quran, provided that such
eldest son is of sound mind and the father has left certain other properties
besides these articles.
(9) Step-Children
The step-children are not entitled to inherit the properties of their step-parents.
Similarly, the step-parents too do not inherit from step-children. For example,
where a Muslim H marries a widow W having a son from her previous
husband, the son is a stepson of H, who is step-father of this son.
The step-father and step-son (or daughter) cannot inherit each other’s
properties. That step-child is competent to inherit from its natural father or
natural mother. Similarly, the natural father and natural mother can inherit
from their natural sons or daughters.
However, the step-brothers (or sisters) can inherit each other’s properties.
Thus, in the illustration given above, if a son (or daughter) is bom out of the
marriage of H and W, the newly born child would be a step-brother (or sister)
of the son from wife’s previous husband.
These sons or daughters are competent to inherit each other’s property. The
step-brothers or sisters may either be, uterine or consanguine. Muslim law
provides for mutual rights of inheritance between uterine and consanguine
brothers or sisters.
(10) Simultaneous Death of two Heirs:
When two or more persons die in such a circumstance that it is not
ascertainable as to who died first (i.e. who survived whom) then, both of them
cease to be an heir for each other. In other words, where two or more heirs
die simultaneously and, it is not possible to establish as to who died first then
under Muslim law, all the heirs are presumed to have died just at one
moment. The result is that such heirs are regarded as if they did not exist at
all; the inheritance opens omitting these heirs.
For example, A and В are each other’s legal heirs in such a manner that after
the death of any one of them, the surviving person would inherit the property
of the deceased one. But, both A and В die simultaneously say, in an aero
plane crash, and it could not be established as to who survived whom. Under
Muslim law, neither A would inherit В nor В would inherit A.
Thus, the legal heirs of A would inherit A’s property as if there was no В at all.
Similarly, the heirs of В would inherit B’s property as if A did not exist at all?
(11) Missing Persons:
According to the texts of Hanafi law, a missing person was supposed to have
been dead only after ninety years from the date of his birth; till then the
inheritance of his properties did not open. But, now this rule has been
superseded by Sec. 108 of the Indian Evidence Act, 1872 which provides as
under:
“When the question is whether a man is alive or dead, and it is proved that he
has not been heard of for seven years by those who would naturally have
heard of him if he had been alive, the burden of proving that he is alive is
shifted to the person who affirms it”.
Accordingly, where a Muslim is missing for at least seven years and if it could
not be proved that he (or she) was alive then, that person is legally presumed
to be dead and the inheritance of his (or her) properties opens.
It has been held by the courts that Hanafi rule of ninety years of life of a
missing person was only a rule of evidence and not any rule of succession;
therefore, this Hanafi rule must be taken as superseded by the provisions of
Indian Evidence Act 1872.
(12) Escheat:
Where a deceased Muslim has no legal heir under Muslim law, his properties
are inherited by Government through the process of escheat. State is
regarded as the ultimate heir of every deceased.
(13) Marriage under the Special Marriage Act, 1954:
Where a Muslim contracts his marriage under the Special Marriage Act, 1954,
he ceases to be a Muslim for purposes of inheritance. Accordingly, after the
death of such a Muslim his (or her) properties do not devolve under Muslim
law of inheritance. The inheritance of the properties of such Muslims is
governed by the provisions of the Indian Succession Act, 1925 and Muslim
law of inheritance is not applicable.