29 June 2018 03:27PM
The Muslim Personal Law (Shariat) Application Act, 1937 is applicable to non-testamentary succession, i.e. succession in the absence of a will. For testamentary succession, which is when the deceased has made a will, then the Muslim Shariat Law is applied to succession, as practised by the Sunni and Shia Muslims.
Moreover, in case of testamentary succession, for immovable property specifically located in the state of West Bengal or a property falling under the jurisdiction of the Bombay and Madras High Courts, the succession is conducted as per the Indian Succession Act, 1925.
Under the Muslim law, there is no stringent difference between immovable or movable property and incorporeal or corporeal properties. Because of the lack of a property distinction between properties, when a death occludes, under the Muslim law, all property owned by the deceased is subject to inheritance. But although all of the properties owned by the deceased are liable to be inherited, the portion of property actually inheritable is determined after appropriations like debt, will, expenses paid in place of a funeral are determined and paid off. Once these appropriations are made, the remaining property can now be disposed of off by inheritance.
There is also no difference between a self-acquired property or ancestral property in Muslim law. This means that, unlike Hindu Law, when a Muslim person dies, all the property that the person may have acquired in his lifetime and also any property that the person may have inherited from his ancestors can be inherited by his heirs.
Types of heirs
There are two types of heirs in under Muslim law: Sharers and Reliquaries. Sharers are entitled to specific fractions of the property of the deceased whereas Reliquaries, as the name suggests, are distributed any residual share in the property.
There are 12 relations that fall under the category of Sharers in Muslim law:
4. Daughter of a song (or a son’s son or a son’s son’s son’s)
6. Paternal grandfather
8. Grandmother on the side of the males
9. Full sister
10. Consanguine sister
11. Uterine sister
12. Uterine brother
No right by birth
Under the Hindu law, a coparcenary gains an interest or right in the property of the deceased the moment such a coparcenary is born. This right to property by birth is called Janmaswatvavad. But because there is no concept of a joint family under Muslim law, there is no concept of the right to property by birth either. Muslim law follows the principle of nemoesthaeresviventis i.e. nobody can become an heir to a living person. This means under Muslim law, the legal right to inheritance of property arises only upon the death of the deceased and not upon the birth of the child.
Another point to note is that an heir can only gain a share in the property of the deceased if the heir outlives the deceased. However, if the heir apparent dies before the deceased then he or she will gain no right to inheritance and thereby their family members cannot take up their share in place of them.
How is property distributed under Muslim Law?
Property can be distributed by two methods under Muslim law: distribution either per capita or per stirpes.
Per capita distribution:
Per capita distribution of property is mainly followed by the Sunni Muslims. In per capita distribution, the property is divided equally among all the heirs. This means that the number of heirs of the deceased determines the amount of share for each heir in the property of the deceased. The branch of the family to which the heir belongs to does not influence the inheritance that he or she is subjected to receive.
Per Stripe's distribution:
Per stirpes distribution of property is followed by the Shia branch of Islam. Under per stirpes distribution, a property is distributed among the heirs of a branch (strip) of the family. Accordingly, the family branch and the number of people that exist in that particular branch of the family will determine the amount of share in the property of the family members.
Take this family free for instance: A is the father of two sons: B and C. B, in turn, have two children: D and E. C has three children: F, G and H.
Now, upon A’s death, his property is calculated to be around Rs. 12,000. According to per stirpes distribution, B and C will gain equal shares of A’s estate which is Rs. 6000 each. Now when B and C die, their property of Rs. 6000 will be distributed among the members of their stripes. In B’s stripe, D and E will inherit B’s Rs. 6000 in equal portions of Rs. 3000 each. In C’s branch, there are three heirs: F, G and H. All three of them will inherit C’s estate of Rs.6000 in equal portions. Which means that F, G and H will be entitled to Rs. 2000 each?
Inheritance rights of Females
Unlike Hindu law, there is no difference between the right to inheritance between men and women under Muslin Law. Under Shia law, women usually receive half of the share amount that the males get. This is reasoned so because Muslim women receive maintenance and also mehr at the time of married whereas Muslim men are entitled only to ancestral property. However, whether or not this actually qualifies as equality between men and women is debatable.
Right of the widow
Widows are also entitled to property in a succession as per Muslim law.
If the widow does not have any children, then she will be entitled to one- fourth of the property that her deceased would receive. The amount that she will actually receive would be calculated after paying off the debts and legal and funeral expenses of her husband.
If the widow does have children or grandchildren, then she will be entitled to one- eighth of the share of her husband’s property.
But a widow has no right to inheritance if she had married her husband while the husband was ill and died at a later point of time, provided that sickness was continuous with no period of recovery or if such a couple had not consummated the marriage till the time of the death of the husband. On the other hand, if the husband who is ill divorces his wife and thereafter passes away from that illness, the widow will be entitled gain a right to inherit till the time that she does not marry again.
Right of a child in a womb
Under Muslim law, a child in the womb of his mother can only be entitled to inherit property if the child is born alive. This means that even in its embryonic stage, a child is considered to be a living person and it is immediately entitled to the inheritance of property, so long as the child is born alive. If the child is not born alive, then its interest in the property is immediately cancelled and shares in the property will be distributed in such a manner as if the child/ embryo had not existed at all.
Right of a stepchild
Stepchildren do not have any rights to inheritance to the property of the stepparents under Muslim Law However, a stepbrother does have tithe right to inherit the property of his stepbrother or stepsister.
Escheat under Muslim Law
Escheat is the process by which the government can take over the rights and possession of the property of a deceased. The state can only take over a deceased’s property if the deceased has no living legal heirs at all. This is because the state enjoys the status of being the ultimate heir to every deceased person.
What if a Muslim is married under the Special Marriage Act, 1954?
The Special Marriage Act, 1954 is a secular law meant to enable inter-religious marriages. The Act allows persons of any religion or faith to have a legal marriage. However, under Muslim law, if a Muslim person gets married under the Special Marriage Act, 1954, he or she will no longer be considered a Muslim person for the purpose of inheritance. This also means that when such a person who married under the Special Marriage Act, 1954 dies, his or her property will also not devolve as per Muslim Law. Instead, the devolution of their property will happen as per the provisions of the Indian Succession Act, 1925.
Doctrine of Representation under Muslim Law
The doctrine of representation is a principle in inheritance law which states that if an heir to an ancestor dies during the lifetime of the ancestor, but the deceased heir leaves behind living heirs of his or her own, then these heirs of the deceased heir will have the right over the deceased’s share in the ancestor’s property since they will act his representatives.
While the doctrine of representation is a widely recognised concept and followed by Hindu, English and Roman law, it is not widely practised in Muslim Law. However, the doctrine of representation is practised to some extent under Shia law for the purpose of calculating the shares of the heirs, more specifically, to determine the shares of heirs to a predeceased brother, predeceased sister, predeceased daughter and predeceased aunt.
Take for instance a family tree wherein A is the common ancestor of two sons, B and C. B has two children, D and E and C has two children F and G.
Under Muslim law, the nearest heir to the ancestor excludes the remote heirs in case of inheritance. If B dies in the lifespan of A, then upon A’s death, only C can inherit the property of A. Thereby, C will exclude the children of B i.e. D and E from having any right to inheritance over A’s property. Had doctrine of representation been applicable to this case, then the heirs of B viz D and E would have gained rights to inheritance by representing B. This means that C would receive one- half of A’s property and the other half would be shared by D and E.
The reason that Muslim law does not apply the doctrine of representation is that under Muslim law the right to inheritance does not arise until the time the ancestor has died. This means that a right that is not vested with any particular member, to begin with, cannot be passed on or be used by the deceased person’s heirs.
What if two or more heirs die at the same time?
In case of simultaneous deaths of two or more heirs, where it cannot be determined which heir died first, then the Muslim law assumes that the heirs who died in such simultaneous fashion are no longer each other’s heirs. This means that in case of simultaneous deaths of two or more heirs, it is presumed that all the heirs died at the same time and therefore will be not considered at all for the purpose of inheritance and towards this purpose, the law will assume them to have never existed.
For instance, A and B are each other’s heirs and their relationship is such that if one of them dies, the other will inherit their property. If both A and B die simultaneously and it is impossible to determine which one of them died first, then neither A nor B would be eligible to inherit the other’s property. This means that the heirs of A (other than B) would inherit A’s property in shares determined as if B never existed and the same calculation would be applicable to B’s heirs as well.
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