Person of every religion residing in India, practice its own personal laws relating to marriage, family and property. Mostly, the personal laws are codified but property rights of Muslims and are totally governed either by the Hanafi School or by the Shia School. The Hanafi School of law of Muslim recognizes those relative whose relation to the deceased is through male, this can also include son’s daughters, son’s son and father’s mother where as the other school makes no discrimination and not only include male but females descendents also. The main sources or the property rights of Muslims laws are governed by, The Holy Quran, The Sunna, The Ijma, and The Qiya. Basically the whole Muslim is managed and governed by these two Muslim law Schools. Under the Muslim personal law for property there is no concept of ancestral property or self acquired property. As per the law as long as the person alive he is the absolute owner of the property and there is no right of the heirs over the property and they are not even entitled to property by virtue of birth like in Hindu succession Act. The right to claim the property may be exercised during the lifetime of the person claiming. The Muslim law of inheritance is a combination of pre custom of Muslims and the rules and regulations introduced by the prophet. When a Muslim dies his all property whether moveable, immoveable, self acquired or ancestral is heritable by his/ her legal heirs. Muslim law governs two types of heirs for the purpose of succession which are sharers and residuaries. Sharers are those who has right of certain share in the deceased property and residuaries are those which are entitled to share which was left by the sharers.
Sharers include:
- Husband,
- Wife,
- Daughter,
- Daughter of a son (or son’s son or son’s son and so on),
- Father,
- Paternal Grandfather,
- Mother,
- Grandmother on the male line,
- Full sister
- Consanguine sister
- Uterine sister, and
- Uterine brother
In case where a male dies intestate or without making a testate it is governed by the Muslim Personal Law (Shariyat) Application Act, 1937 on the other side if a person dies after making a testate or a will the inheritance is governed under the relevant Muslim Shariyat law as applicable to shias and Sunni.
Division of property under Muslim personal law
The division of property under Muslim law can be done by two ways namely, per capita and per strip distribution.
Under Per capita distribution method the estate left by the ancestor is equally distributed among the heir. The share of each heir is dependent upon the number of heir left behind. Per capita method is majorly use in Sunni school of Muslim Law. On the other hand per strip distribution method is followed by the Shia law and the property under this method is distributed among the heirs according to their strip they belong to. Both the school has their own methods as per the division of the property on Law school follow Per capita method and the other law school follows per strip distribution method. Both males and females have equal rights to share in the property. When a person dies all the heir of the deceased have equal right to inherit the property irrespective of the gender of the heir but the share of a male is double of the share of the women gets when the division takes place. The reason behind this approach is that the male is under the obligation to maintain her wife and child and at the time of the solemnization of marriage the wife receives Maher. Where there is no heir left behind the deceased the property is transferred or inherited to the government through the process of escheat. When a Muslim marries under the special marriage Act 1954, as for the inheritance he is entitled to share in property of the deceased. If such person dies his property cannot be divided in accordance with the provision of the Muslim law, it falls under the Hindu Succession Act, 1956. In case of illegitimate child he is not entitled to inheritance and similarly his parents are also not allowed to inherit the property from him/her too.
Disqualification from the right to property
The Muslim law of inheritance and succession also mention some disqualifications of the person from the property of deceased they are,
- If a person caused the death of the other person or attempt to murder any person intentionally, by mistake, by negligence or by an accident the same shall be barred from the inheritance.
- An illegitimate child cannot inherit from his father neither his father can but he can inherit from his mother and the relatives of the mother and vice versa.
- If the child is born alive, is entitle to inherit the property but if he dies in the womb it will be considered or presumed that their exits no heir.