Under Muslim Law the Succession is a combination of four sources

  • The Holy Quran
  • The Sunna (the practice of the Prophet)
  • The Ijma (the consensus of the learned men of the community over a decision on a particular point)
  • The Qiya ( analogical deduction of what is right and just in accordance with the good principles laid down by the God)

Muslim law has given recognition of two types of heirs, firstly, sharers and the second one is residuaries. Sharersare the ones who are entitled to certain share in the deceased property. 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.

Sharers
The Sharers are 12 in number(1) Husband, (2) Wife (3) Daughter, (4) Daughter of a son (or son’s son or son’s son and so on) (5) Father (6) Paternal Grandfather (7) Mother (8) Grandmother on the male line (9) Full sister (10) Consanguine sister (11) Uterine sister (12) Uterine brother. The share taken by each of sharers will differ in certain conditions. For instance 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. If the deceased had left behind son(s) and daughter(s) then the daughters cease to be sharers and become residuaries instead with the residue being so distributed as to ensure that each son gets double share of what each daughter.
Under the Indian legislative the rules that govern inheritance under the Muslim law depend on the property involved. In cases of Non testamentary succcession, the Muslim Personal Law (Shariat) Application Act, 1937 gets applied.On the other handif a of a person who dies with a will which means who has created a Will before death, the inheritance is allowed under the relevant Muslim Shariat Law as applicable to the Sunnis and the Shias.In cases property is a form of immovable and situated in the state of West Bengal, Chennai and Bombay, the Muslims shall be bound by the Indian Succession Act, 1925. This exception is only for the purposes of testamentary succession.
It is important to note that the Muslim law does not make any strict distinction between any two or more type of properties i.e. movable and immovable, corporeal and incorporeal etc. Since there is no such distinction between properties on the event of death of a person every such property which was within possession of the deceased person shall become a subject matter of inheritance. Such appropriations may include expenses paid in lieu of funeral, debts, legacies, wills etc. After making the all these payments the remaining property shall be termed as the inheritable property.
General principle of succession and inheritance under Muslim law :

NO-Birth Right:
Inheritance of property under Muslim law comes only when a person is died. Any child born into a Muslim family does not get right to property on his birth. If an heir lives even after the death of the ancestor then he will become a legal heir and is therefore he will be entitled to a share in the property. However if the original heir does not survive his ancestor then no such right of inheritance in the property will exist.

Distribution of the Property:
Distribution of property under Muslim law can be made in two ways – per capita or per strip distribution. The per capita distribution method is completely used in the Sunni law. Under this method the estate left over by the ancestors gets equally distributed among the heirs. Therefore the share of each is depend on the number of heirs. The per strip distribution method is used in the Shia law. Under this method of property inheritance the property gets distributed between the heirs according to the strip they belong to. Hence the quantum of property to each heir is depend upon the property available to branch and the number of persons belongs to that branch.

Rights of females:
Muslim does not create any distinction between the rights of women and men. On the death of their ancestor, nothing can prevent the girl and the boy child to become the legal heirs of inheritable property. However it is generally found that the quantum of the share of a male heir is double of the female heir. The justification behind this isthat under the Muslim law a female shall upon marriage receive mehr and maintenance from her husband whereas males or husband gets none of the two benefits and he will have only the property of the ancestors for inheritance. The males or husband have the duty of maintaining their wife and children as well.

Widow’s right to succession:
No widow is excluded from the succession under Muslim law. A childless Muslim widow is entitled to receiveone-fourth of the property of her deceased husband after completing his funeral, debt and legal expenses. However a widow who has children or grandchildren is entitled to receive one-eighth of the deceased husband’s property. If a Muslim man marries during an illness and dies of that medical condition without brief recovery or consummating the marriage that man widow has no right of inheritance. In case her ailing husband divorces her and afterwards dies from that illness then the widow’s right of inheritance continues until she remarries.

A Child in the Womb:
A child in the womb of its mother is competent to inherit only if it is born alive. A child in the embryo is considered as a living person and as such the property vests immediately in that child. But such a child in the womb is not born alive, the share already vested in it is divested and it is presumed as if there was no such heir (in the womb) at all.

Escheat:
In case a deceased Muslim has no legal heir under Muslim law then his properties are inherited by Government through the process of escheat.