Partition under Muslim laws

Every religion practiced in India is governed by its respective personal laws which also include property rights. However the Muslims in the country do not have codified property rights and are generally governed by either of the two schools of the Muslim personal law i.e. the Hanafi and the Shia. While the Hanafi School recognises only those relatives as an heirs whose relation to the deceased is through a male. This includes son’s son, son’s daughter and father’s mother. On other hand the Shia school, favours no such discrimination which means that heirs who are related to the deceased person through a female are also accepted. Succession is a matter of right of a person and is a necessity as well. When a person renounced the world all the legal rights and obligations of that person will dissolved and passed to some other person. Succession comes under personal laws in India and based on religion. Therefore the law of succession is based on one’s religion. Among Muslims the people who believes in Islam, THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT 1937 deals with matters of intestate succession.The Muslim Law of Succession is a combination of four sources i.e. the Holy Quran, the Sunna, the Ijma, the Qiya .The Muslim law has recognised two types of heirs
Firstly: The Sharers, these are the ones who are entitled to certain share in the deceased property.
Secondly: Residuaries, are the ones who would take up the share in the property that are left over after the sharers have taken their part of the share.
In a case where a man has left a valid will testamentary succession will happen and the property will be divided as per the Will. If there is no will than intestate succession takes place. Also in the Muslim Law there is no differentiation between self-acquired and inherited property. Hence all the property of the person goes to the heirs.
In a recent public interest litigation (PIL) has been filed for asking amendment in the Muslim personal law on inheritance alleging that the Muslim the women are being discriminated for the sharing in property in comparison to male heir. The petition claimed that the law shows that a wife should receive 1/8th of the property of the husband on his death if they have children. Where no children out of that marriage she is entitled to 1/4th of the property and a daughter will receive half of the share of a son. In stark contrast the husband receive 1/4th of the property of wife on her death if they have children. In case there are no children of that marriage he is entitled to receive half the property. A son will receive double the share of the daughter the plea alleged.

There are three class of heirs under Muslim Law

• SHARERS: they are entitled to a prescribed share of the inheritance. In case of a males property his wife is the sharers of his property. A wife takes 1/4th of share where the couple is without lineal descendants and a one-eighth share otherwise. A husband can take a half share of wife’s estate, where the couple is without lineal descendants and a one-fourth share otherwise. A sole daughter can take a half share of the estate. If the deceased has left behind more than one daughter then all daughters jointly take two-third of the share.
• RESIDUARIES: who do not have any prescribed share in the inherited property but they are entitled to inherit whatever is left in the property after giving away the part of sharers. The both children daughters and sons are the residuaries in the father’s property. A daughter is permitted to take her share in the partitioned property irrespective of her marriage. The share of the daughter and son are in the ratio of 2:1. The son is entitled to double the share of property than the daughter.
• DISTANT KINDRED: Are the persons who are related to blood to the deceased person or the property owner but not falls into the category of sharer or residuary. There right is not ipso facto present in the property but the right needs to be proved.