Muslim law of succession constitutes four sources of Islamic law:
- The Holy Quran
- The Sunna - that is, the practice of the Prophet
- The Ijma - that is, the consensus of the learned men of the community on what
should be the decision on a particular point
- The Qiya - that is, an analogical deduction of what is right and just in
accordance with the good principles laid down by God.
Muslim law recognizes two types of heirs, Sharers and Residuaries. Sharers are
the ones who are entitled to a certain share in the deceased's property and Residuaries would take up the share in the property that is left over after the
sharers have taken their part.
The Sharers are 12 in number and are as follows: (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, and (12) Uterine
The share taken by each sharer will vary in certain conditions. For instance, a
wife takes 1/4th of share in a case where the couple is without lineal
descendants, and a one-eighth share otherwise. A husband (in the case of
succession to the wife's estate) takes a half share in a case where the couple
is without lineal descendants, and a one-fourth share otherwise. A sole
daughter takes a half share. Where the deceased has left behind more than one
daughter, all daughters jointly take two-thirds.
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 of what each daughter gets.
Non-Testamentary and Testamentary succession under Muslim law:
In Non-testamentary succession, the Muslim Personal Law (Shariat) Application
Act, 1937 gets applied. On the other hand, in case of a person who dies testate
i.e. one who has created his will before death, the inheritance is governed
under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis.
In cases where the subject matter of property is an immovable property, 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
Inheritance of property in Muslim law comes only after the death of a person,
any child born into a Muslim family does not get his right to property on his
birth. If an heir lives even after the death of the ancestor, he becomes a legal
heir and is therefore entitled to a share in the property. However, if the
apparent heir does not survive his ancestor, then no such right of inheritance
or share in the property shall exist.
Distribution of the Property:
Under the Muslim law, distribution of property can be made in two ways – per
capita or per strip distribution. The per capita distribution method is majorly
used in the Sunni law. According to this method, the estate left over by the
ancestors gets equally distributed among the heirs. Therefore, the share of each
person depends on the number of heirs. The per strip distribution method is
recognised in the Shia law. According to this method of property inheritance,
the property gets distributed among the heirs according to the strip they belong
to. Hence the quantum of their inheritance also depends upon the branch and the
number of persons that belong to the branch.
Rights of females:
Muslim does not create any distinction between the rights of men and women. On
the death of their ancestor, nothing can prevent both girl and boy child to
become the legal heirs of inheritable property. However, it is generally found
that the quantum of the share of a female heir is half of that of the male
heirs. The reason behind this is that under the Muslim law a female shall upon
marriage receive mehr and maintenance from her husband whereas males will have
only the property of the ancestors for inheritance. Also, males have the duty of
maintaining their wife and children.
Widow's right to succession:
Under Muslim law, no widow is excluded from the succession. A childless Muslim
widow is entitled to one-fourth of the property of the deceased husband, after
meeting his funeral and legal expenses and debts. However, a widow who has
children or grandchildren is entitled to one-eighth of the deceased husband's
property. If a Muslim man marries during an illness and subsequently dies of
that medical condition without brief recovery or consummating the marriage, his
widow has no right of inheritance. But if her ailing husband divorces her and
afterwards, he dies from that illness, the widow's right to a share of
inheritance continues until she remarries.
A Child in the Womb:
A child in the womb of its mother is competent to inherit provided it is born
alive. A child in the embryo is regarded as a living person and, as such, the
property vests immediately in that child. But, if 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.
Where a deceased Muslim has no legal heir under Muslim law, his properties are
inherited by Government through the process of escheat.
Marriage under the Special Marriage Act, 1954:
Where a Muslim contracts his marriage under the Special Marriage Act, 1954, he
ceases to be a Muslim for purposes of inheritance. Accordingly, after the death
of such a Muslim his (or her) properties do not devolve under Muslim law of
inheritance. The inheritance of the properties of such Muslims is governed by
the provisions of the Indian Succession Act, 1925 and Muslim law of inheritance
is not applicable.