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