After Hindus, Muslims are the second largest religion in our country. They are governed by general laws as well as their laws. For succession and inheritance, Muslims have their own set of laws. The Muslim Personal Law (Shariat) Application Act, 1937 applies to Muslims with regards to inheritance of property.

 Section 2 of the said Act, application of personal law to Muslims is laid down stating that with regards to intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other person law, where the parties are Muslims, Muslim Personal Law (Shariat) shall be applicable. Charities, charitable institutions and charitable and religious endowments are excluded from the subject matter of S.2 of the Shariat Act.

Sources Of Muslim Law

Various sources have resulted in the development of sources of Muslim Law over some time.

  1. Quran- It contains matter not only legal but social, moral, ritual, spiritual, economic, ecclesiastical etc. covering nearly every facet of human life. In Islam, morals and laws are so intimately mixed that they cannot be separated from one another. The Quran is the direct command of Allah.
  2. Sunnah or Hadith- These are the traditions that may be classified into 3 Major categories: Continous (Hadith Mutawatir), Well-known (Hadith Mashhoor) and isolated (Hadith Ahad). It is primarily a teaching of the prophet as reported to people, his conduct as well.
  3. Ijma- Ijma is defined as the agreement of the Muslim Jurisconsults in any particular age or juridical rule. The authority of Ijma is founded on Quranic and Sunnah texts. It is primarily classified into three types- (1) Ijma of the companions of the Prophet (2) Ijma of the jurists (3) Ijma of the people
  4. Qiyas- they are also known as Analogy, which is a process of deduction by which the law of a text is applied to cases which, though not covered by the language, are governed by the reason of the text.
  5. Justice, equity and good conscience- Public interest or the good of the majority is considered under this source of law.
  6. Legislation- Earlier there was no codified law concerning Muslim law existed. However, with the advent of British rule, the Britishers realised a need to regulate the Muslims and their laws in India. One of the major enactments that apply to only Muslims, is the Muslim Personal Law (Shariat) Application Act, 1937, which supersedes matters of testamentary succession among certain communities, charities, agricultural land etc.

Law Of Inheritance Under Muslim Law

In Gobind Dayal v. Inayatullah ILR, it was observed by the court that the Islamic law of inheritance was founded by the Prophet and was based on republican principles. The law provided that upon the death of an owner, his property is to be divided into numerous fractions, by the rules.

The distribution of property in Muslim law is primarily done in two ways:

1. Per capita basis- It is mostly followed by Sunni followers. It believes in equal distribution of the property amongst the family members.

2. Per capita- It is mostly followed by Shia followers. It is based on the Quantum of strip method, where the members are mostly divided into a hierarchy based on the closeness of their relationship to the deceased person.

General Principles Of Inheritance

  1. No distinction between movable and immovable property: In Muslim law, there is no actual differentiation made between movable and immovable property for inheritance. However, under Shia law, a childless widow is not entitled to share in the land belonging to her husband.
  1. No joint family property or separate property: Ancestral property and self-acquired property are similar in Muslim law. A member of the family may not necessarily be an heir and vice versa.
  1. Rule of primogeniture not recognised- The rule of Primogeniture means that the eldest son has special privileges. The eldest son, however, in Muslim law, has no special privilege.
  1. Birthright not recognised- The right of inheritance or succession arises only after the death of the ancestor. Until then the heir apparent will not have any entitlement to that property. The principle nemo est heres viventis i.e. the living person has no heir is applicable. In Shehammal v. Hasan Khani Rawther and Ors, in this case, the respondent was one of the heir- apparent who executed a deed with his father to relinquish his rights over the property in exchange for some consideration. It was held that the doctrine of spec speculation need not necessarily be considered in a family arrangement.  
  1. An illegitimate child inherits from their mother only- an illegitimate child has no right in the property of his father, and as a right, he can only inherit from his mother.
  1. A child who is in the womb also gets a share in inheritance- for the case of safeguarding the property interest of a child in the womb, it is deemed to be born on the date of conception. The other heirs would be entitled to distribute the estate among themselves only after reserving the share of the unborn.
  1. Escheat- in case a deceased Muslim has no legal right under Muslim law, his properties can be inherited by the government.

Exclusion From Inheritance

  1. Partial or imperfect exclusion:
    1. Exclusion of an heir from one share and admission to another heir- For example, the daughter in the presence of a son is excluded as a sharer and may become a residuary.
    2. Partial reduction of the specified share- The share of an heir may be reduced in case of the presence of another heir. For example, the share of the mother might reduce if her sons are born.
  1. Total or perfect exclusion:
    1. To give inheritance to a nearer degree the remote degree may be excluded- For example, the son may exclude the son’s son.
  1. Full-blood excludes half-blood- in case of priority, full-blood is given more importance than half-blood. 
  1. Non- Muslim- Under Islamic law, a non-Muslim is not entitled to inherit property from a Muslim. However, this rule is not applicable in India after the passing of the Caste Disabilities Removal Act, of 1850. In Miler Sen Singh v. Moqbul Hassan Khaan, the court held that the inheritance to the property in case of a convert to Islam is governed by Muslim law itself.
  1. Murderer or Homicide- The one who causes the death of another either intentionally or unintentionally cannot inherit from the deceased. However, if this act is committed by an insane person or is a child, it does not exclude them from inheritance. However, Shia believes that in case of homicide, there must be an intention, and the absence must be proved.
  1. Slavery- in both Shia and Sunni law, the status of slavery is a bar to succession.
  1. Illegitimacy- An illegitimate child cannot inherit from the father, he could, however, inherit from his mother’s side. In Shia law, an illegitimate child is completely excluded from the inheritance, however, there is an exception. In the case of Fornication (sexual intercourse between people not married to each other) the child is excluded from inheritance, while in the case of imprecation (disowned by the father), he is allowed to inherit from the side of the mother.
  1. Exclusion of daughters in India by custom or statute- In India, the daughters are excluded from inheritance under the Watan Act (Bombay), 1886 and the Oudh Estates Act, 1869. But their importance is decreasing. A custom also prevails in Gujjar whereby the daughters are excluded from inheritance.
  1. Relinquishment of inheritance rights- In Gulam Abbas v. Haji Kayyum Ali, the court held that the relinquishment of the future possible right of inheritance by an heir might debar him from inheriting. In Modinsaheb Peerasaheb Peerzade v. Meerabi, it was observed by the court that relinquishment in the family settlement was recognised.
  1. Childless widow- A childless widow is not entitled to share in the husband’s land whether agricultural as well as urban.

Conclusion

Muslims in India are governed by both general as well as personal law. In the case of personal law, they are governed primarily by Muslim Shariat Law, 1937. The Act deals with the law of inheritance and succession both in the case of testamentary and non-testamentary cases. The act also lays down the disqualifications that make a person not eligible for succession of property, who otherwise would have been.

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