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Muslim law of Inheritance and Succession

The most important event after the independence of India has been to frame and adopt the constitution. The Constitution of India has to be significantly secular and just to the various groups of people in the country. Respective personal laws govern the major religious sects in the country. The constitution of India provides a complex legal framework to accommodate the multi-lingual, multi-cultural and the multi-religious society like ours.

However, laws regarding the personal matters of an individual that are based on the customs and practices of every singe citizen of India, is governed by the “personal law” of their own religion. As its well known, Muslim Law in India enjoys the policy non-interference in their personal law. Under that, the succession and inheritance provision as under the Muslim Personal Law also enjoys non-interference.

It is a clear provision that the Muslim property related matters are to be regulated as under the Muslim Personal Law. Muslims in the country do not have specifically codified property rights and are broadly presided over by either of the two schools of the Muslim personal law – the Hanafi and the Shia.

Sources of Muslim law

The Muslim law is based on four main sources. The Quran (the Holy Scripture), The Sunna (The practices of the prophet), The Ijma (the concord of the learned men of the society who arrive at a particular decision for a matter) and The Qiya (the analyzed deduction of the principles of God, on what is Right and fair.

Inheritance and succession as under Muslim law

The Muslim law provisions recognize two types of heirs. Firstly, sharers, the ones who are entitled to certain share in the deceased's property and Secondly, Residuary, the ones who would take up the share in the property that is left over after the sharers have taken their part.

Sharia Law

Property: al-mal

The property as defined under the Sharia Law must have these main attributes to be called as such.
  1. The property must have a value.
  2. The benefit received from the property should be such that it is recognized under the Muslim law.
  3. The property must be under possession.
  4. The property must be desired by humans
  5. The concept of expenditure must have an effect on the property.

Shafie law

This school defines al-mal in a rather general and wide manner by stating that, a property is anything that benefits the people. Something that has value, and is exchangeable. When it's damaged the person who damaged it would be liable to compensate; and something that will not be thrown by people, by money and likes.

Hanabali law

The Hanabali law defines a property as something, which possess a value and benefit without having a pressing need and necessity. Things that are excluded from this definition are those that are legally prohibited except for during dire necessity.

Maliki law

A property is something that is owned and the ownership is conferred to a person. Something an individual can claim over something and excludes others from benefitting from it. The Concept of Ownership and the Concept of Property are though relevant to each other but are distinct concepts under the Islamic Law. The Islamic law considers Allah as the only true owner and believes that the absolute ownership lies with him.

Ownership under Islamic Law is recognized as a bundle of rights over something that is recognized as property. And Property is recognized as a substance that lawfully made together with its usufruct (A legal right to use and derive profit from property belonging to someone else provided that the property itself is not injured in any way)

Property Rights and Inheritance

Birthright

As compared to Hindu law, there are provisions regarding birthright as related to properties in Muslim law. No individual enjoys the right of any property as birth. In fact only when there's a death, is a person's property inherited by the “legal heir”. The concept of legal heir also comes into being when the heir is alive even after the death of the person. A child in the womb will only be entitled to the share in property if he or she is born alive, under Muslim law. In case if he is born dead then the share conferred in him will cease to exist and it shall be presumed that it never existed. The rights of the stepchildren do not extend to inherit the property of their step – parents. However, the stepbrother can inherit property from their stepsister or brother.

Primogeniture

Primogeniture is a principle of inheritance under which the eldest son of the dead person enjoys certain special privileges. Muslim law doesn't recognise the rule of primogeniture and every one of the sons are treated equally.

However, under the Shia law, the eldest son has an prerogative to inherit his father's garments, sword, ring and therefore the copy of Quran, as long as such eldest son is of sound mind and therefore the father has left certain other properties besides these articles.

Inheritance of ancestral and acquired property

There is no distinction between an individual and his self-acquired property in Muslim law. Each and every property that is owned by an individual can be inherited by his successors. Whenever a Muslim dies, all his property whether self acquired or inherited from his ancestors will be transferred of ownership to his successors. Subsequently, every other property acquired plus the ancestral property ownership title is transferred to the next line of successors.

Under Muslim law, the principles of inheritance are rather strict. A son takes double the share of a daughter and, on the opposite hand; the daughter is the absolute owner of whatever property she inherits. If there's no brother, she gets half a share of the property. It is legally hers to manage, control, transfer and discard it as and when she wants to.

The reason behind this may be that under the Muslim law a female will after marriage receive mehr (a kind of payment paid by the groom) and maintenance from her husband whereas the male members will have only the property of the ancestors for inheritance. Also, males are vested with the duty of maintaining their wife and kids.

She is furthermore eligible to receive gifts from whom she inherits from. This can be seen as contradictory because she will be able to inherit only one-third of the man's share but can get gifts with no trouble.

Simultaneous Death of two Heirs

When two or more persons die in such a circumstance that it's not determinable as to who died first (i.e. who survived whom) then, both of them cease to be an heir for the other. In other words, where two or more heirs die at the same time and, it's impossible to state on who died first then under Muslim law, all the heirs are presumed to have died just at the same moment. The results that such heirs are considered if they didn't exist at all; the inheritance opens omitting these heirs.

Doctrine of representation

Doctrine of representation states that if in the lifetime of an ancestor, any of the person's legal heirs die, but the latter's heirs still survive, then such heirs shall become entitled to a share in the property as now they will be representing their immediate generation. Doctrine of Representation finds its meaning within the Roman, English and Hindu laws of inheritance. However, this doctrine of representation doesn't find its place within the Muslim law of inheritance.

In cases where a person dies without any heir then, the property of such a person shall belong to the government thereon. The state is considered as the ultimate heir of every deceased. Accordingly, they argue that there are often no claims through a dead person in who no right could are vested by any possibility. But, it may be that non-recognition of principles of representation under the Muslim law of inheritance seems to be unreasonable and harsh. It is maybe unfair that a son, whose father is dead, is unable to inherit the properties of his grandfather along side his uncle.

Missing Persons

According to the texts of Hanafi law, a missing person was purported to are dead only after ninety years from the date of his birth; till then the inheritance of his properties did not open. But, now this rule has been replaced by Sec. 108 of the Indian Evidence Act, 1872 which provides as under:

'When the question is whether a person is alive or dead, and it's proved that he has not been heard of for seven years by those that would naturally have heard of him if he had been alive, the burden of proving that he's alive is shifted to the one that affirms it'.

Accordingly, where a Muslim is missing for a minimum of seven years and if it couldn't be proved that he (or she) was alive then, that person is legally presumed to be dead and also the inheritance of his (or her) properties opens.

It has been held by the courts that Hanafi rule of ninety years of life of a missing person was only a rule of evidence and not a rule of succession; therefore, this particular Hanafi rule must be taken as replaced by the provisions of Indian Evidence Act 1872.

Escheat

Where a dead Muslim person has no legal heir under Muslim law, Government inherits his properties through the method of escheat. State is considered the final word heir of every deceased.

Marriage under the Special Marriage Act, 1954

Where a Muslim institutes 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 don't devolve under Muslim law of inheritance. The provisions of the Indian Succession Act, 1925, govern the inheritance of the properties of such Muslims and Muslim law of inheritance isn't applicable.

Conclusion and summary
The Holy Quran states: Allah has purchased from believers their persons and their wealth in lieu of Jannah. Man is a trustee of the wealth that he owns for the duration of his life. When the term of his life ends, his trustees.

This article revolves around analyzing the principles of inheritance and succession under Muslim. The law of inheritance has its principal derived from four principal sources of Islamic law. Property as under Sharia law, Shafie law, Hanabali law and Maliki law. There are no provisions regarding birthright as related to properties in Hindu law no individual enjoy the right of any property at birth. Only during death of a person transfer his self acquired property and his own ancestral property to the next in line successors.

Primogeniture principle of inheritance when the eldest son of the dead person enjoys special privileges is not recognized as under Muslim law. In a situation where two or more persons die at one moment and it was not a certain level as to who died first then all of them cease to be the heir for one another. In a Situation where a person goes missing, if the person has not been heard of for seven years the person is legally presumed to be dead and the inheritance of his properties open.

When in the lifetime of the ancestor, the person's legal heirs die but the latters heirs are still alive, then such heirs shall become entitled to the share in the property, as now they will be representing the ancestors. But when a deceased Muslim has no legal heir the government inherits his property is through the method of escheat.

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