Succession is an important right and a requirement as well. Every person has to surrender the world one day because of which all the legal rights and duties has to be passed to other. Succession comes under the matter of religion; there are various personal laws which deals with the succession basically divided as per the religion. For Muslim people who has faith in the Islam has the Muslim Personal Law Application Act, 1937(Shariat). This law deals with the intestate succession for Muslim people. Partition is mandatory as after a person demises, his property, legal rights and duties are divided into his heirs or those who have bonafide intention. In partition the joint ownership comes to an end and eligible share is given to each party having interest. The share is to be divided under each party after four duties fulfilled i.e. his paying of funeral and burial expenses, paying debts of the deceased and settling down the will of the deceased wherein he has the right to transfer his one third properties.
Classes of heirs under the Muslim Law
1. Sharers: Basically the relations are the Sharers like, mother, sister, uterine brother, etc. In Sunni Law there are 12 sharers in which 8 females and 4 males whereas in Shia Law there are 9 Sharers with 6 females and 3 males. 1/6th of the total share is fixed for the wife form husband.
2. Residuaries: Those who do not have the prescribed share in the inherited property or who left after the sharers would come under the Residuaries. The son and daughter come under the residuaries. A daughter irrespective of her marital status can demand her share in the father’s property. 2:1 is the ratio of distribution among son and a daughter.
3. Distant Kindred: That who does not fall under the category of sharers and residuaries but are in the blood relations comes under the distant kindred. There relation needs to be proved.
4. Escheat: When there is no relative of the deceased then the property goes to the government.
In sunni law, this cycle is followed which is mentioned above but in shia law, there is no distant kindred, it goes directly from residuaries to escheat.
Rules of exclusion
Generally, Muslim law is not acquainted to principle of representation. The nearer relations exclude the remoter relations under Muslim Law. For instance, if in the class heirs there is father and paternal grandfather, father is to be taken into cognizance and paternal grandfather would be excluded.
If there is father, brother and sister are there, and then the father would uphold as both the children are linked with the father. But, mother is an exception to it.
Lastly, full blood relations would prevail and half blood relations would be excluded. But, a uterine relation is an exception to it and won’t be excluded.
Five primary heirs would never be excluded from the shares and would invariably inherit the property i.e. the deceased’s husband/wife, son, daughter, mother, father.
Shares of the primary legal heirs
· Husband would get the 1/4th share
· If there is no lineal descendants then ½ share would be there for husband
· If the property is inherited together by both wife and children then wife will get 1/8th share or else she will get 1/4th share.
· Shares would be divided if there are multiple wives.
Son and daughter
· If there is a single daughter, she will get ½ share but if multiple shares are there then 2/3rd in total between all will be shared.
· Son will always get double the share of each daughter.
· If both mother and children gets inherited then mother will get 1/6th share or else 1/3rd share would be there for mother.
· Father would be given 1/6th share and it is fixed.
Doctrine of Radd (Return)
This doctrine is basically returning the share back to the people who has fixed share as nobody is alive to take the excess share which is the balance share after the fixed share. This is called doctrine of Radd or Return.
Firstly, it only applies when there is no residuary. Secondly, a widow or widower cannot be a part of doctrine of return. A share cannot be returned to them if there is any other sharer or distant kindred.
Disqualifications to Inherit
A person cannot inherit under following situations:
Conversion: One can’t inherit if he/she is from another religion. But, as per Caste Disabilities Removal Act, 1850 if a Muslim coverts to any other religion, he still can inherit.
Also, if one’s father was a Hindu and he converted to Muslim but the child is still a Hindu, he then can’t inherit his father’s property.
Illegitimate child: Under Sunni law, an illegitimate child can’t inherit from the father’s property but can inherit from mothers’ property whereas in Shia Law, an illegitimate child can’t inherit either from father or mother.
Killing of a person: If one person kills the other from whom he was supposed to inherit would be disqualified.
In Shia Law, if there was no intention of killing the person then he won’t be disqualified.
In Sunni law, your intention doesn’t matter. If you kill a person you cannot inherit from him.
Exclusion of daughters: In some cases because of the customary practices and special statues daughters are excluded. The “Rule of Primogeniture” is being followed under which elder son will get the preference. This rule is followed under Watan Act, 1886, The Oudh Act, 1869, Gujal and bakarwal communities where daughters are always excluded and in Jammu&Kashmir in some communities in the absence of all male agnates of the deceased, the daughters can prevail.
A partition is an important legal proceeding wherein the jointly held property is shared under the heirs of the deceased. This has been classified as per the religions. Different personal laws deal with the subject matter as per the religion. There are various conditions are procedures according to which one can acquire the share from the property. Muslim law has divided some of their rules as per Sunni Law and Shia Law. Succession will take place under the Muslim Law by two ways, if there is a testament then testamentary Succession would be there and if there is no will then intestate succession would occur which we’ve discussed above.