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Key Takeaways

  • Inheritance represents the most important means of transferring wealth and property from one generation to another.
  • Muslim Law dictates that upon an ancestor's death, all of their properties pass through succession.
  • In Islamic law, the distribution of property is done according to two principles: per capita for Sunnis and per strip for Shias.
  • The Muslim Personal Law (Shariat) Application Act, 1937 applies in cases of non-testamentary succession. Alternatively, if a person dies leaving a will, then his inheritance is governed by Shariat laws.
  • The husband can inherit the property of his deceased wife under both the Indian Succession Act and the Shariat Laws.

Introduction

The Muslim inheritance law is a superstructure built on the foundation of pre-Islamic customary laws. In addition, the concepts of birthright and survival under the Mitakshara School of a Hindus on are not perceived in Muslim Law. Neither does the Islamic inheritance law have a distinction between Joint Hindu Family Property and separate property. Inheritance represents the most important means of transferring wealth from one generation to another. This article aims to cover the concept of property rights under Islamic laws. Also, the article covers the inheritance of property after a person's death.

Muslim Law of Inheritance

Muslim law dictates that upon an ancestor's death, all of their properties pass through succession. In other words, the next in line to inherit does not obtain their rights until the time of their ancestors. Succession occurs only after an ancestor dies, and then the property becomes vested in the beneficiaries.

There are mainly four sources that govern the Islamic laws. Similarly, the law of succession is also guided by a combination of the four sources. These are:

  • The Holy Quran – The Islamic religious book;
  • Sunna – The practices by the Prophet;
  • Ijma – The consensus and learning of the respected members of the community on a particular subject;
  • Qiyas – All deductions on moral grounds, supported by just principles.

Due to the blending of the koranic principles and customary law of inheritance, Shias and Sunnis now hold differing views on inheritance law, which have led to the spread of two different inheritance laws. While Muslim citizens in the country lack codified property rights, the Muslim personal law – either the Hanafi or Shia school – generally governs these concepts.

  • In the Sunni/ Hanafi Laws, pre-Islamic rules and customs are allowed to remain in place. Still, they are transformed as prescribed in the Koran and by the Prophet. In the Hanafi School, only relatives related to the deceased through a male are recognized as heirs. Like, father's mother, son's daughter, and son's son are included in this list.
  • The Shias hold certain principles regarding the amendments that appear in the Koran, which leads to the development of principles and rules that are different from what appears in the Koran. Also, the Shia sect does not accept discrimination as to the relations with the deceased. Therefore, if someone related to the deceased is related through a female, she is also accepted as an heir.

In Islamic law, the distribution of property is done according to two principles: per capita for Sunnis and per strip for Shias. Each of their inheritances will be contingent on the kind of branch they're part of and the number of people that comprise that branch.

Heirs Under Muslim Law

Muslim law classifies the heirs into two groups: Sharers, who receive a portion of the deceased's property, and residuaries, the remaining beneficiaries after the sharers have taken their allotted shares.

Sharers:

The Sharers are (1) Husband; (2) Wife; (3) Daughter; (4) Daughter of a sonor son's son and so on; (5) Father; (6) Paternal Grandfather; (7) Mother; (8) Grandmother on the male line; (9) Full sister; (10) Consanguine sister; (11) Uterine sister; (12) Uterine brother.

Depending on the condition, each sharer will take a different percentage.

Some of the instances of inheritance of property are;

  • If a couple is without lineal descendants,the wife takes ¼th of the share. However, if the case is otherwise, the wife gets a one-eighth share.
  • In succession to the wife's estate, where there are no descendants, a husband inherits half of the property. Otherwise, in the presence of lineal descendants, one-fourth share is allotted.
  • If there is only a single daughter, she gets half of the inheritance. If a parent leaves behind more than one daughter, all daughters jointly claim two-thirds of their parent's estate.
  • If the deceased had left behind the son(s) and daughter(s), then the daughters go from sharers to residuaries. It ensures that each son receives twice the share of what each daughter gets.

General Principles Regarding Inheritance under Muslim Law

Legislations

In India, the inheritance rules among Muslims will vary according to the type of property involved. The Muslim Personal Law (Shariat) Application Act, 1937 applies in cases of non-testamentary succession. Alternatively, suppose a person dies leaving a will. In that case, his inheritance is governed by Shariat law, as applicable to the Shia and Sunni sects. Muslims, however, are bound by the Indian Succession Act, 1925, when the property they own is located in West Bengal or under the jurisdiction of the High Court of Madras or Bombay. It is permitted in testamentary succession for these exceptions to apply.

Kinds of Property

It should be noted that Islamic law does not place any strict limitations on different kinds of properties such as movable and immovable, corporeal and incorporeal, or even multiple types of properties owned. As a result of no such distinction, every property of which the deceased person was the rightful owner becomes subject to inheritance after the death.

After making specific appropriations, the amount of property that will become the subject matter of inheritance available to the legal heirs to inherit must be determined. It may include funeral expenses paid in lieu of debts that are passed on, legacies, wills, etc. This left-over property shall be defined as inheritable property after all of these payments have been made.

Acquisition

Unlike Hindu law, Islamic law does not differentiate between individual property such as self-acquired or inherited. As a general rule, every property that an individual holds may be passed on to his heirs. For Muslims, whenever someone dies, his assets — both, those that he had during his lifetime, or those that he got via inheritance — can be passed on to his heirs. Similarly, when such a legal heir dies, all of his inherited property and the additional property he acquired during his life go to his heirs.

Birthright

According to Hindu law, your karmas and Janmaswatvad (birth rights) are passed on to your offspring when you die. This principle does not appear in Muslim law, however.The question of property inheritance only arises after a person's death in Islamic law.All children born into Muslim families don't automatically have the rights to the property since their birth.When a living descendant survives the death of the deceased ancestor, he is considered a legal heir. He is thus entitled to a portion of the deceased's estate. There shall be no inheritance or share in the property if the apparent heir dies before the ancestor.

Female's Right of Inheritance:

Inheritance laws are applied equally to men and women. If a Muslim's heirs also include female heirs, male and female heirs will receive all of the estate's assets simultaneously. Normally, a male has twice the share of a female. While there is some merit to the theory that a man's share of a given resource is twice that of a woman, this doesn't necessarily apply in all cases. Under Islamic law, while a female heir will receive an additional amount of money or property, or to their benefit, in the form of her Mehr and maintenance, a male heir will receive none of the two benefits. Similarly, the male heir has primary responsibility for providing for his children. The female heir is responsible only in the most extreme circumstances.

Child in the Womb

For a child in the womb to inherit property, it must be born alive. During pregnancy, a fetus is considered a living person, and therefore the property passes immediately to the child. However, if such a child in the womb is not born alive, the share that has already been transferred to is deemed to be divided, as though there is no such heir (in the womb).

Stepchildren

A step-child is not entitled to the properties of their step-parent, even if that person has died. For this same reason, the step-parents, like the stepchildren, do not inherit anything from the stepchildren, for instance, in such a case, where a Muslim man who married the widow after her previous husband's death, the son of such widow is a stepson of the Muslim man. Property inheritance laws do not allow two people to inherit property from one another. The stepchild may inherit from the father or mother who has their reproductive rights (who are also its genetic parents).

So, if another child is born to the Muslim man and the widow following the marriage, then the new arrival is a step-brother or step-sister to the son from the widow's previous marriage. This generation of children is capable of passing property from one another. These brothers and sisters may be uterine or consanguine siblings.

Rights of Widows in Islam

The widow, when her husband dies, has many rights concerning money. It is her right to inherit the deceased husband's property. No one has the right to her inheritance without her consent. Under Islamic law, a widow can receive a portion of the deceased spouse's inheritance from the property. The wife's portion is one-fourth if she has no children when her husband leaves, but she gets an eighth if he leaves a child.

Can a Husband Inherit from His Deceased Wife?

To answer the core question, yes, the husband can inherit from his deceased wife. As the husband forms a part of the 12 sharers of the inherited property, he can inherit.The wife can entitle a particular share to her husband in her will. However, if she dies intestate, then specific laws apply to the husband's inheritance.

As per Islamic law, the share of the husband is half of the total property left behind. However, if the wife leaves children or grandchildren, male or female, he is entitled to 1/4 of the property. If the husband has multiple wives or a wife who has a child from a previous marriage, he will only be allowed to 1/4 if the wife or wives with whom he had children dies. Also, the other wives will not inherit her estate if one of them passes away. Wives of the same man have no inherited ties to each other.

In this case, if the deceased wife(s) had no children of their own, then the husband would receive one-half of what is to be divided among the surviving family members. This instance is consistent with previous cases where a husband will inherit 1/2 even if he has children from another marriage, as those children are not his deceased wife's or wives' offspring.

Apart from the Islamic laws, inheritance under Muslim Law is also guided by the Indian Succession Act 1925. As per Sections 33A & 35 of the Act, the property will go to the husband.

Section- 33-A – This Section is a special provision relating to situations where the deceased intestate has left a widow and no lineal descendants. The Section states that:

(1) In such cases, where there are no direct descendants, a widow exists, and the net value of the intestate's property does not exceed 5,000 rupees. All of the property shall be inherited by the widow.

(2) If the net value of the property exceeds five thousand rupees, the widow is entitled to five thousand rupees of it. She shall have a charge against the entire estate of such party for the sum of five thousand rupees, plus interest at 4% per annum from the date of the intestate's death until payment.

(3) This Section's provision for the widow is in addition to and without prejudice to her interest and share in the residue of the intestate's estate remaining after payment of the said sum of five thousand rupees, plus interest as aforesaid. Such residue shall be distributed following the provisions of Sec.33 as if it were the entire estate of such intestate.

(4) All debts, all funeral and administration expenses of the intestate, and all other lawful liabilities and charges to which the property is subject shall be deducted from the gross value thereof to determine the net worth of the property.

(5) This Section shall not apply to the property of any Indian Christian,any child or grandchild of any male person who is or was at the time of his death an Indian Christian, or Hindu, Buddhist, Sikh, or Jain to whose property is, under Sec.24 of the Special Marriage Act, 1872, regulated by the provisions of this Act; unless the deceased dies intestate in respect of all his property.

Section- 35 – This Section discusses the rights of a widower. — If his wife dies intestate, a husband who survives her has the same rights to her property as a widow does to her husband's property.

Grounds for Disqualifications from Inheritance

Reasons for disqualifying an heir to inherit the estate of the intestate are—

  • Murderer:A person who has been responsible for another person's death, whether it was on purpose, through gross negligence, or by accident, is prevented from gaining control of that other's estate under Sunni Law.
  • Illegitimate Children: An illegitimate child cannot inherit from his father, but he can inherit from his mother, her relatives, and all associates of the mother.
  • Difference of Religion: Non-Muslims are prohibited from inheriting from Muslims.Under the Caste Disabilities Removal Act, 1850, if a non-Muslim accepts Islam and then dies, the Muslim Law will apply to his property.

For inheritance purposes, a man who contracts his marriage under the Special Marriage Act, 1954, stops being a Muslim. When such a Muslim dies, his (or her) property does not pass to his heirs under Islamic inheritance law. In such cases, the Indian Succession Act, 1925 governs the inheritance,and the Muslim inheritance law does not apply.

  • Escheat: A deceased Muslim's assets can go to the government because he doesn't have a legal heir in the Muslim religion. It is believed that the State is the ultimate heir of every deceased person.

Important Case Laws

Cauvery Vancata v. Collector of Manulipatan AIR 1863 – By escheat, the State takes possession of the property of an heirless person. Still, it is subject to any trust, charge, or liability that may be imposed on it.

Abdul Hammed Khan v. Peare Mirza, 1935 I.L.R. 10 Luck. 550 – As a result of the application of the doctrine of return, it was determined that a childless widow who died in the absence of other heirs was entitled to inherit her share of her husband's estate as well as the remainder of his property, including the land.

Hakim Rehman v. Mohammad Mahmood Hassan, A.I.R. 1957 Pat 559 – A ruling, in this case, held that on the death of a Mohammedan, the entire estate devolves upon the deceased's heirs at the time of his death and that these heirs succeed to the estate as tenants in common, each owning a specific share.

Ali Saheb v. Hazara A.I.R. 1968 Mys 351 – In this case, it was determined that even though the principle of rad (return) under classical law does not apply to the surviving spouse, if that spouse is the only survivor in India, they are entitled to the entire estate of the deceased.

Damodar v.Shahjadi A.I.R. 1989 Bom 1- Specifically, it was determined that where an individual, whose sole heir was his widow, had bequeathed all of his assets to a stranger, the court upheld his will after allocating to the widow her 1/4th share of his estate by way of inheritance.

Abdul Raheem v. Land Acquisition Officer, A.I.R. 1989 AP 318 – It was held that Muslims only inherit after they die. No one may be the heir of a person who is still alive. In other words, if a person is not dead, his heirs do not have any interest in his property. Hindu law recognises the concept of 'right by birth,' whereas Muslim law does not. An heir has no rights at all before the death of an ancestor under Islamic law.

Sheikh Abdul Rehman v. Sheikh Wali Mohamed A.I.R. 1992 – In modern India, it is a well-established rule that the estate of a Muslim who dies without children passes to the State.Rukmanibai v. Bismillavai, A.I.R. 1993 MP 45 - In this case, it was determined that a person who has converted to Islam and dies leaving only his daughter and no residuary, the daughter will be entitled to both her share and the residuary share of the deceased's property upon his death.

Conclusion

It is important to note that there is a need for general principles of Muslim law to apply uniformly throughout the entire community for better recognition of such rights and laws. Even though the laws are not fully codified, they are the result of centuries of customs and practices that have been followed by the Islamic community all over the world.

Questions:

  • Under which Section of the Indian Succession Act, 1925 does the husband have the right to inherit his deceased wife's property?
  • What is escheat under inheritance laws?

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