This Article analyses the succession under Muslim Law. It focuses on the women’s right of inheritance in the pre-Islamic era and in the present. It talks about general principles of inheritance and doctrines that deal with it.
Muslim Law of Succession embodies from four sources of Muslim law:
- The Holy Quran
- The Sunna- that is, whatever the Prophet did without the reference of God, is his tradition. It states that where the Quran is silent, Sunna was referred.
- The Ijma- means, opinion of learned. A person who is knowledgeable in the law would agree upon a point, such a consensual opinion was referred to as Ijma.
- The Qiya- It is a method of comparing a problem in the present time with a similar problem in the past for which the solution is provided in the text.
The Islamic law of heritage, like the rest of the personal Islamic law, combines elements of pre-Islamic traditions, and rules are interpreted from the Quran by the Prophet. With the advent of Islam, the Prophet amended customary laws and included some principles intending to give some rights to women. For example, the women were no longer treated as the goods of the husband, but as an equal being, and consequently, they could inherit from each other. Female parents and relatives have also been permitted to inherit to some extent. In this way, the institution of Islamic law has improved both the social and economic situation of women.
After the adoption of Islamic law for the first time in the second half of the first millennium AD, it introduced unprecedented changes to improve succession rights for women, as before, they had no right to own property. However, this right was somewhat limited, and the female heirs were only entitled to a share equal to half of what the male heirs received. However, there were even reasons for this discrimination, which arose from the economic and social conditions of the time.
One of the reasons given was to prevent the transfer of family assets to another family through a married woman. This was because of patriarchal notions that saw children as the question of man, and thus the property of a woman that has inherited would then pass to the children, resulting in the transfer of assets from her family to her husband’s family.
As it was the man’s responsibility to take on most of the financial burden of the family, he was seen as more deserving. The portion inherited by a woman could be enjoyed on its own, but a man was expected to use it for the entire family.
Inheritance rules operating in pre-Islamic society
In this pre-Islamic society, the inheritance was based on the principle of “comradeship in arms” – since men were physically stronger and better combatants, it has led to the exclusion of the inheritance of women, minors of both sexes, and invalids as well as the preference of the paternal to the maternal lineages. There was also a tradition of inheritance by Confederation at that time. Under this custom, two strangers would enter into a pact, according to which the blood of one was the blood of the other, and hence an attack on one was an attack on another. Thus, under this covenant, the two sides defended each other while they were alive, and the one who died left his property to the other. That included the inheritance of each other’s wives. Since women were treated as movable assets at that time in Arab society, they had no inheritance rights.
The inheritance of pre-Islamic customary law has been carried out according to four principles:
- The nearest male agnate or agnate took over the whole estate of the deceased person.
- Females or relatives were excluded.
- Descendants were preferred to ascendants, while ascendants were preferred to collateral.
- When the Agnates were equally distant from the deceased, the estate was divided per capita.
The Prophet acknowledged the injustice of this system and contending that this discrimination was against the principles of Islam, brought several reforms to the system of inheritance. It is important to note that the Prophet chose only to make changes, however drastic, in the existing custom rather than to create wholly new practices. For example, several categories of family members who had no right of succession before were given to them in the Quran. The Agnates did not have any more exclusive rights of succession, but relatives were also given to them. The wives could now inherit, and now the wife had the right to inherit from the husband.
Furthermore, the ascendants were henceforth entitled to inherit even when there were male descendants. However, the inheritance share of women was limited to half that of men. This was justified by the law of recompense, for the woman was entitled to a dower and maintenance, and was unable to participate in defending the community. In addition, she did not have to provide for the family, for it was the duty of men, who were therefore obliged to receive a greater share of the property.
Intestate Succession in Islamic Law
Succession means the transfer of property from the ancestors upon his death to the legal heirs. When the inheritance of property is carried out according to the will of the deceased, this is known as testamentary succession. And in a case, where the deceased died without making a will, and Succession is executed according to General principles. This is known as Intestate Succession. The Muslim (Shariat) Application Act, 1937 is applicable in case of non-testamentary succession, in which, will is not made by the deceased and the same law is applied in a case in which will is made. This law is practiced by both Shia and Sunni Muslims.
Gobind Dayal vs Inayatullah (1885)
In this case, the court held that The Islamic law of succession is derived from the customary law of succession and is based on a Paternal family system. The person has equal rights, whether male or female to hold or dispose of the property after attaining the age of majority. Chapter 4 of The Quran, says what is left by the parents and those nearest related, whether the property is small or large, there is a share for men as well for women.
General Principles of Inheritance
- Nature of Property- The property of the deceased will become inherent only after the payment of funeral expenses, debts, and legacy. The remaining property, whether movable or immovable is hereditary. Under Islamic Law, there is no concept of joint property and separate property. It does not differentiate between corpus or usufruct, corporeal or incorporeal property.
- The Doctrine of Representation- It refers to the principle of Representation, by the son to his deceased father for the inheritance of the property of his deceased Grandfather. This doctrine is not recognized under Islamic law. Under Muslim law, if two people claim the inheritance, it will be determined according to the degree of closeness to the deceased.
- No Birthright- Under Islamic law, a person can avail of the inheritance right only upon the death of the ancestors. A person cannot be the heir of a living person. There is no Birthright.
- The Succession of Murdered deceased – If the heir commits any act which causes the death of the ancestors, whether intentional or accident will be punished under the law and will not be entitled to inherit property.
- Illegitimate child- Under Muslim Law, an illegitimate child is considered as a child of the mother only. And therefore it cannot inherit from father’s property, nor can the father inherit from his property. Inheritance rights exist only between child and maternal relations.
- Missing person- Islamic law is not clear regarding the period for which the share of a missing person should be held, because there is uncertainty whether he is alive or dead. However, Section 108 of the Indian Evidence Act, 1872 provides that people missing for 7 years and have not been heard of, are presumed to be dead and inheritance of his property is commenced.
- Apostasy- A person who has converted to a religion other than Islam, is not entitled to inheriting the property of a deceased Muslim under Muslim Law. However, Section 3 of the Caste Disabilities Removal Act, allows an apostate to get its share in ancestral property, but his descendants are not entitled to inherit.
- Escheat- In cases where the deceased died without any legal heir, then, his property is inherited by the state.
- Child in the womb- A child in the womb is considered as a living person thinking that he is alive. In such cases also a child in the womb is entitled to inherit the property of the deceased.
Types of Heir
Islamic law divides heir into seven classes. Three principle classes and four subsidiary classes.
It includes the ones who are entitled to a certain share in the deceased property. Their shares have been determined by the Quran. It includes 12 relations that fall under the shares in Muslim Law:
- Husband- A surviving husband inherits his wife’s property. He takes a half share in cases where a couple is without a child and 1/4 if they have a child.
- Wife- A wife is entitled to 1/4 share if they do not have linear descendants. And 1/8 share if they have linear descendants. If there is more than one wife, then the share will be equally divided among them.
- Daughter- A single daughter will take 1/2 share, but if the deceased has more than one daughter, all daughters jointly will take 2/3rd share.
- Daughter of a son – she is only entitled if she has predeceased the son of the deceased and such son has not left behind any son of his own. So, a single daughter will receive 1/2 share, and if there is more than one daughter, then all daughters jointly will take 2/3 rd share.
- Father- A father who is Sharer will inherit 1/6 of the deceased estate. He becomes Sharer only after the deceased has left a child or son’s or grandson’s child.
- Mother- There are 3 circumstances for a mother’s inheritance:
- Mother is entitled to get 1/6 share from the deceased where there is child or son’s child or there are more than 2 brothers or sisters, whether full, consanguine or uterine.
- She is entitled to get 1/3 if there is no child or son’s child or no brother or sister.
- She is entitled to get 1/3 after deducting the husband’s/ wife’s share.
- Paternal GrandFather- Paternal Grand Father will only become Sharer when both the parents of the deceased are absent. He is entitled to receive 1/6 estate from the deceased estate. Maternal grandfather will not be entitled to Sharer of Quranic.
- Paternal GrandMother- when both the parents of the deceased are absent, then in such case grandmother is entitled to get a Share from the inheritable estate. If the deceased has 2 or more grandmothers then both the grandmother will get a joint share.
- Full sister- Single full sister will receive 1/2 share in case of more than one full sister then they will get 2/3 Collectively.
- Consanguine Sister- It means sister in law. If there is one Consanguine sister and no full sister or excluder, then she is entitled to get 1/2 share. But if there is 1 full sister then the Consanguine sister did not get any share. In case of more than one Consanguine sister, then both will get 2/3 share Collectively, but If there are 2 or more surviving full sisters, then the Consanguine sister does not have inherent right or share.
- Uterine Sister and Brother- Means half-sister or brother having the same mother but different father. They are only entitled if there is no other child of the deceased. The share in the case of one sister and brother is 1/6 and in the case of more than one, it is 2/3 share.
Residuaries or Agnatic heirs
Agnatic heirs are also known as Residuary heirs because the closest relation of the deceased is seen through male relations. Agnatic heirs inherit the property only after Sharers have acquired their respective shares. Agnate heirs or residuaries can only get their share, after the heritable estate is divided between the Quranic heirs, and there is still some estate left. residue estate goes to the residuaries. All the residuaries are related to the deceased through males only will get their share.
The residuaries are further divided into the following parts:
- Residuaries in their rights:
This class involves the agnatic male relations of the deceased. No female is included in this line of relationship. Residuaries in their rights is divided into:
- Offspring of the deceased, that is the son of the deceased or the male lineal descendants.
- The root of the deceased, which is the father or the grandfather of the deceased, how high so ever.
- Offspring of the father, that is the full brothers, consanguine brothers and their male lineage.
- Offspring of the true grandfather, how high so ever.
- Residuaries together with another and Residuaries in another’s rights
The female will become residuaries, only when they co-exist along with certain males that fall under this category. This means that the females become residuaries when there exist males on the same degree, or of a lower degree who would receive such share. These are:
- Daughters with sons
- Son’s daughters with a son’s son or a male descendant
- Full sister with the full brother
- Consanguine sister with her brother
There are only two residuaries together with another:
- Full sisters, with the daughters or son’s daughters
- Consanguine sisters, with the daughters or son’s daughters.
Uterine heirs will get a share in the deceased estate, only in the absence of Sharers and residuaries. There is one exceptional circumstance in which, if the wife or husband of the deceased survives, leaving behind no other Sharer or residuaries, then the Uterine heirs will inherit the rest of the estate remaining after the share of the wife or husband. In this class, all the relations which are not included in sharers or residuaries are included in it.
Uterine heirs are further divided into 4 parts:
- Successor of the deceased- It includes daughter children and their successor. And children of son’s daughters.
- Ascendants of the deceased- it includes false grandfather and grandmother.
- Descendants of Parents-
- Full brother’s daughters and their descendants.
- Consanguine brothers’ daughters and their descendants.
- Uterine brother’s children and their descendants.
- Daughters of full brother’s sons are as low as ever.
- Daughters of consanguine brother’s sons are as low as ever.
- Sister’s (full, consanguine, or uterine) children and their descendants.
- Descendants of immediate grandparents-
- Full paternal uncle’s daughters and their descendants.
- Consanguine paternal uncle’s daughters and their descendants.
- Uterine paternal uncles and their children and their descendants.
- Daughters of full paternal uncle’s sons are as low as ever.
- Daughters of consanguine paternal uncle’s sons are as low as ever.
- Paternal aunts (full, consanguine or uterine) and their children.
- Maternal uncles and aunts and their children.
- True or false Descendants of remote ancestors.
Successor by contract
It means a person who is entered into a contract with the deceased before his death, in consideration to receive payment.
It is a person whose deceased had made acknowledgement of kinship. Like, a man can acknowledge another person as his brother, and that person becomes the acknowledged Kinsman.
If there is the absence of relation in principle class as well as in the first two Subsidiary classes, a person who will inherit the estate of the deceased becomes sole Legatee.
In absence of primary or Subsidiary classes, the whole property of the deceased will be inherited by the state and this is Called Escheat.
The doctrines of Inheritance under Muslim Law
The doctrine of Aul / Doctrine of increase
We have already seen that the share of each sharer is fixed under Muslim Law. But where several share co- exists. It sometimes happens that the total of the respective share exceeds unity(one). For example, A deceased leaves behind a husband and 2 sisters. Now, in this case, the Husband will get 1/2 share as there are no children. And 2 sisters jointly get 2/3, as there is no son. 1/2+2/3 = 7/6 which exceeds the unity and property gets short in distribution. In such cases doctrine of Aul is applied in which the share of each sharer is reduced by making a common denominator to equalize it to the sum of numerators. In the above example, first, we have to make the common denominator which will be 6. Then we have to increase the denominator and make it equal to the sum of numerators that is 3/6 + 4/6= 7/7=1.
Now the husband will get a 3/6 share and the two sisters will get a 4/6 Collectively.
Doctrine of Ridd
After the share has been distributed among sharers according to their entitlement, and after allotment, there is a surplus left and there are no residuaries to take the surplus, the Doctrine of return or Doctrine of Ridd is applied. Although there is one exception, neither husband nor wife is entitled to return so long as it is alive another sharer or a distant kindred.
Muhammad Muin-Ud-Din And Anr. vs Musammat Jamal Fatima, 1870
It was observed by the court that, on the death of a Muslim owner, the heir, but not the estate becomes responsible for the debts. Hobhouse, J. observed that. “It is the heirs themselves who are accountable to the extent of the property they have received”. It means that in addition to the estate, the heirs also inherit the debt. The court may also ask them to pay the amount for the protection of the creditor’s rights.
Syed Shah Muhammad Kazim vs Syed Abi Saghir And Ors
The court held that “the heir has to pay all debts before allocating any part of the property to his use”. If the heir manages to sell the property to a third person, even then the creditor to whom he owes the debt will have better ground on this estate than the person who might, in good faith, have bought it.
Shah Bano case
In the famous Shah Bano case, the apex court had held that in case of a divorce, the husband must make reasonable and fair arrangements to maintain his ex-wife even after separation under section 3(1) of the Protection of the Rights of Muslim Women in Divorce Act, 1986. This period extends beyond iddat as the woman keeps control over her goods and properties. If her husband dies, a widow obtains the share of one-eighth (if there are children) but obtains a share of a quarter (if there are no children). If there is more than one woman, the share may decrease to one-sixteenth.
Under Muslim law, women whether sister, mother, daughter, or wife, all of them get equal share in the property of father and husband. No widow is excluded from inheritance.
The Succession Act of Muslims in India is a mixture of many different Acts. The general principles of succession apply evenly upon the whole community. This law is not completely codified but it is the result of customs and practices that have been followed for centuries in the Islamic community all around the world.
A wife is entitled to 1/4 share if they do not have linear descendants and 1/8 share if they have linear descendants. If there is more than one wife then the share will be equally divided among them.
Does a child in a womb have the right of Inheritance?
A child in the womb is considered as a living person thinking that he is alive. In such cases also a child in the womb is entitled to inherit the property of the deceased.
When does a property of the Deceased is inherited?
The property of the deceased will become inherent only on the death of the person and after the payment of funeral expenses, debts, and legacy.
Does an illegitimate child have the right to inherit a father’s property?
An illegitimate child is considered as a child of a mother only. Therefore, it can not inherit from the father property nor father can inherit from his property.
Do descendants of apostate have the right of Inheritance under Muslim Law?
Section 3 of the Caste Disabilities Removal Act, allows an apostate to get its share in ancestral property but his descendants are not entitled to inherit.
Can women become a residuaries heirs?
Only agnatic male relations of the deceased are included in residuaries heirs. No female is included in this line of relationship. However, the females become residuaries when there exist males on the same degree, or of a lower degree who would receive such share.