MUSLIM LAW OF INHERITANCE

Submitted by
………………………

Course: ……..., Division: ….., Batch: …..…., PRN: ………………..

Of
Symbiosis Law School, NOIDA
Symbiosis International (Deemed University) , PUNE
In
September, 2018

Under the Guidance of

……………………..,
Professor at
Symbiosis Law School, NOIDA.
 Certificate

The project entitled ”Muslim Law of Inheritance” submitted to Symbiosis law

school, NOIDA for Family Law II as part of Internal assessment is based on my
original work carried out under the guidance of …………………………... The
research work has not been submitted elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the project has been
duly acknowledged. I understand that I myself could be held responsible and
accountable for plagiarism, if any, detected later on.

Signature of student
Date:
 Acknowledgment

Family Law II project assigned to me has provided a lot of knowledge to me. In

performing the assignment, I had to take the help and guidance of some respected
persons, who deserve my greatest gratitude. I sincerely thank my teacher for the
guidance and encouragement in finishing this assignment and also for teaching this
course. I would like to show my gratitude to Symbiosis law school, NOIDA for
giving us a good guideline for assignment throughout numerous consultations. I
am really grateful because we managed to complete our assignment within the time
frame allotted to me.
 Index

1) Introduction Part……….……………....…….
 Introduction
 About the topic
 Research methodology

2) Discussion Part…………………………………..
 Background
 Conceptual framework
 Method Of Inheritance
 Comparison between Shia and Sunni law

3) Conclusion Part…………………………………..
 Result
 Reference
 Introduction

Introduction
The research will be divided into 3 broad categories:-

1. Introduction in which the introduction, about the topic and research methodology
would come.

2. Discussion in which the research will firstly, talk and give a background to the theme
“inheritance under Muslim law”. Secondly, the research will talk about the conceptual
framework in which the explanation would be provided. Thirdly, the research will state
the method of inheritance. Lastly, the research will compare between Shia and Sunni
laws of inheritance.

3. Conclusion and reference– In this a conclusion would be derived from the

discussion done and will also state the references taken to reach that conclusion.

About the Topic

Under the Indian legislative scheme, the principles that administer inheritance under the Muslim
law rely upon the sort of property involved. In cases of Non testamentary succcession, 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
situations where the topic of property is an immovable property , situated in the state of West
Bengal, Chennai and Bombay, the Muslims will be bound by the Indian Succession Act, 1925.
This exception is just for the reasons for testamentary succession.

It is noteworthy that the Muslim law does not make any strict distinction between any two or
more type of properties such as movable and immovable, corporeal and incorporeal etc. Since
there is no such distinction between different kinds of properties, therefore, on the event of death
of a person, every such property which was within the ambit of ownership of the deceased
person shall become a subject matter of inheritance. The amount of property that shall become
the subject matter of inheritance and is made available to the legal heirs to inherit shall be
determined after making certain appropriations. Such appropriations may include expenses paid
in lieu of funeral, debts, legacies, wills etc. After making all these payments, the left over
property shall be termed as the inheritable property.
Research Methodology
The information for the research was gathered from secondary sources like research papers,
articles, web journals, books and different sites. The information gathered is just subjective in
nature and gives fundamental and simple comprehension about the point. The quantitative
information explore isn't given and it is left to promote future research.

Discussion

Background to the topic

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.

Conceptual Framework
Unlike Hindu law, there is no provision of distinction between individual i.e. self acquired or
ancestral property. Each and every property that remains within the ownership of an individual
can be inherited by his successors. Whenever a Muslim dies, all his property whether acquired
by him during his lifetime or inherited from his ancestors can be inherited by his legal heirs.
Subsequently, on the death of every such legal heir, his inherited property plus the property
acquired by him during his lifetime shall be transferred to his heirs.
Method of Inheritance

Sharers

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 brother.

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.

Primogeniture:
Sunni Law:In Muhammadan Law, there is no rule of primogeniture, that is, the principle which
lays down that if a man leaves several sons, the eldest son gets an advantage over the rest.

Shia Law:Under the Shia law, however, habua, i.e., the deceased father’s wearing apparel, the
Quran, his ring and his sword become the property of the eldest son.

The share of the surviving spouse

This varies depending upon the presence of a child or a child of a son. Where the surviving
spouse is a widower or the husband of the deceased woman, he takes one-fourth (1/4) of her
property in presence of a child or the child of a son, and in their absence it is half of the total
property (1/2). In case a man dies, his widow takes one-fourth (1/4) of his property in absence
of a child or a child of a son, and in their presence it is one-eighth (1/8) share. Where more than
one widow is present all of them collectively will take one-fourth or one eighth as the case may
be and will divide it equally.

Daughter's Right
Muslim law is frequently criticized because it gives daughters a share equal to only half that
taken by a son. However, Mitakshara Hindu law, even after the Hindu Succession Act, is much
harsher in its treatment of the daughter as an heir to joint family property in the presence of a
son. Further, given the fact that a Muslim is permitted to dispose of a maximum of only one-third
of his estate by will,'? the Muslim daughter cannot be totally disinherited by her father in the way
a Hindu daughter can be deprived of her new rights under the Hindu Succession Act by the
simple expedient of a will, or the Mitak- shara daughter deprived of any inheritance to her
father's interest in joint family property by the even simpler renouncement by him in favour of
his other coparceners.

Uterine brother and sister

Uterine brothers and sisters share a common mother with the deceased but they are from
different fathers. The shares of both vis-a-vis the other are same. The share of one is 1/6 th
and if more than one is present then they together take 1/3 rd . Their turn to inherit comes in the
absence of a child, child of a son how low so ever, father or a true grandfather.

Residuaries
They are all male agnates (Descendants, Ascendants and Collaterals- inherit through male
relations) and only four females who are ‘Sharers’ but are converted into Residuaries in certain
cases (namely, daughter, son’s daughter, full sister and consanguine sister). Descendants- Son,
son’s son (how low soever). Ascendants- Father, true grandfather (how high soever).
Descendants of Father (collaterals)- Full brother, Full sister, consanguine brother, consanguine
sister, etc. Descendants of true grandfather (collaterals)- Full/consanguine paternal uncle, his
son, etc. If all the Residuaries are males, the property is divided among them equally. If the
Residuaries also include females the property is divided in such a way that share of a male is
double the share of female.

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.

Rights of the step children

The rights of the step children do not extend to inherit the property of their step – parents.
However, the step brother can inherit property from their step sister or brother.

Escheat:
Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by
Government through the process of escheat. State is regarded as the ultimate heir of every
deceased.
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.

Suit by Creditor against Heirs

If there is no executor or administrator, the creditor can proceed against the heirs of the deceased.
Where the estate of the deceased has not been distributed between the heirs, he is entitled to
execute the decree against the property as a whole, without regard to the extent of the liability of
the heirs inter se.

Comparison between Shia and Sunni law of Inheritance

Similarities

There are some similarities between them due to the fact that the both laws are derived from the
same Quranic verses. These laws are on the same page as to who are Quranic sharers, they agree
on their prescribed shares and conditions under which their entitlement is regulated to a large
extent. There are twelve sharers according to Sunni law out of which Shia law recognizes nine
sharers.43 The agreed upon sharers are: husband, wife, father, mother, daughter, full sister,
consanguine sister, uterine brother and uterine sister.44 These legal traditions differ with each
other on three persons’ status as sharers: son’s daughter, true grandfather and true grandmother.
According to Sunni law, they are included in Quranic sharers as they step into the shoes of
daughter, father and mother respectively in their absence. According to Shia law, son’s daughter
may inherit when there is no son and daughter of the deceased alive, but she is not a Quranic
sharer as regarded by Sunni law. Moreover, true grandparents are placed by Shia law in the class
2 along with false grandparents and their inheritance is dependent on absence of heirs of the class
1. Taking into account the agreement on nine sharers by Sunni and Shia laws, one may expect
that there will be situations in which both laws suggest the same sort of distribution of shares.

Differences

It has been brought to forth that if some structural aspects of Shia and Sunni laws are grasped, it
would become relatively easy to master these systems. For instance, division of legal heirs into
three classes according to Shia law does not have any comparable feature in Sunni law .There is
another noteworthy distinction that Shia law does not recognize distant kindred as another
category of legal heirs as they are identified in Sunni law. Most of those who are classed as
distant kindred in Sunni law, they are absorbed in the three basic classes of Shia law. Hence, they
are eligible to inherit an estate either as a sharer or a residuary. Moreover, Shia law erects its
foundational rules in such a manner to exclude any possibility of Aul to take place: whereas the
same principle is frequently resorted to in Sunni law. As these schemes of inheritance in Islamic
law are inspired from the Pakistan Journal of Islamic Research Vol 10, 2012 80 verses of the
Quran, they are expected to be similar in certain respects. Both systems recognize same persons
as the sharers and the residuary though they differ in calculation of their respective shares in
numerous circumstances. It must be admitted after comparing the both systems that the space
characterized by similarity is too small in comparison to the area where Shia and Sunni laws
have different solutions to the same problems.

Conclusion
Conclusion
This law is heavily criticised in the present day since it continues to discriminate against women,
by giving them only half the share of property that men get. Circumstances have changed
completely in the last century, and now women’s role is no longer confined solely to the house.
There are many working women today, many of whom even live independently. There are even
instances where the woman becomes the prime bread-winner for the family. Therefore, the old
argument that men should be given more inheritance because they need to provide for the whole
family fails, and women are also involved in providing.

This discrimination is the reason many believe that reforms are urgently needed in the Islamic
law of inheritance, to bring women on par with men. It is also used by supporters of a Uniform
Civil Code. But any attempt by the legislature to push through such reforms would surely not be
welcomed by the Muslim community. Opponents of the UCC say that amending the Muslim
personal law would violate Article 25 of the Constitution which grants freedom of religion. This
is because the Muslim personal law comes from the Shariat which is an integral part of Islam.

It can be agreed that reforms in the Islamic law of inheritance are the urgent need of the day. But
it would be most effective if the change was to come from within the Muslim community. At the
time of the advent of Islam, the Prophet showed how progressive the new religion was, when he
gave rights of property ownership and inheritance to women. All that is needed for Islam to be
embrace reforms is for it to be freed from the suffocating grip of orthodoxy. That this is possible
is seen in Turkey, an Islamic nation that already has legislation giving equal shares in property to
widows and daughters, compared to males.
References
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