CHAPTER
INHERITANCE
§ Inheritance refers to the transfer of property from a deceased person to a living person who is legally related to him or her. The process of devolution of inheritance for Muslims is governed by various Muslim personal laws, which are based on pre-Islamic customary succession laws and principal scriptural sources like the Holy Quran, the Sunnah, the Ijma, and the Qiyas.
§ There are two kinds of succession –
§ testamentary (where a will was created before the death of the deceased person) and
§ non-testamentary (where the person dies intestate, i.e., without creating a will).
§ Under Muslim laws, non-testamentary succession is governed by the Muslim Personal Law (Shariat) Application Act, 1973, while testamentary succession is governed by separate Shariat laws for the Shia and Sunni sect of Muslims. The Muslim laws of inheritance also have a unique system of classifying the heirs into ‘sharers’ and ‘residuary’, derived from the Quran and Hadith.
CONCEPT OF INHERITANCE UNDER MUSLIM LAW
§ The concept of inheritance is rooted in the Islamic or Quranic principles enumerated by the Prophet.
§ In the case of Abdul Raheem v. Land Acquisition Officer (1989), the court remarked that Muslims do not follow or recognise the joint family system in matters of inheritance, and after the death of a Muslim person, the rights, title, and interest he held in his estate cease to exist and stand vested in others.
§ However, inheritance is not guaranteed to every child that is born into the family, i.e inheritance is not at all a birth-right under Muslim law.
§ An heir- apparent must survive the deceased to claim an inheritance.
§ A child in the womb of its mother is also competent to inherit, provided it is born alive.
§ Under Islamic laws, male and female heirs alike have the right to inherit property.
§ Near female heirs or cognates are recognised in the class of heirs.
§ However, the females get only half of the quantum shares allotted to their male counterparts, since under the Islamic system, females will go on to receive more wealth through mehr and the maintenance provided by their husbands, while males only have inheritance, which contributes to their duty of maintaining their wife and children.
§ Nevertheless, in a marital setting, the husband and wife are equally entitled to inheritance from their spouse.
§ A widow is also included in the scheme of inheritance.
§ A widow who has children or grandchildren is given 1/8 of the property of her deceased husband, and if she is childless, she gets 1/4 of his property.
§ However, if a woman marries a Muslim man during his illness, which subsequently became the reason for his death, and the marriage has not been consummated for that reason, then as a widow, she would not have the right to inheritance.
§ But if her husband divorced her before dying of illness, then her right to inheritance continues until she remarries.
The Islamic laws also give priority to the ascendants of the deceased over the descendants in the scheme of inheritance by making them the immediate heirs or the first-in-line to inheritance.
§ Ascendants are parents and their ancestors, and descendants are children and their issue.
§ Direct Ascendants (e.g., parents and grandparents)
§ Collateral Relatives (e.g., siblings, cousins, aunts, and uncles)
§ The Islamic scheme of inheritance comprises two kinds of heirs – the Sharers, or Quranic heirs, and the customary heirs, called the residuaries.
§ However, there is divergence in the application of Quranic principles between the divided sects of Sunni and Shia Muslims, creating slightly different rules of inheritance – the Sunni law of inheritance and the Shia law of inheritance.
SUNNI LAW OF INHERITANCE
§ The Sunni in India primarily belong to the Hanafi school and are governed by Hanafi school of law.
§ The Hanafi laws attempt to create a more harmonious relationship between the customary law and the Quranic law by which the inclusion of the Quranic class of heirs does not deprive the customary heirs of their share but rather just a portion of the estate is allotted to the Quranic heirs.
§ It is important to note that, even though the new class of heirs created included females, it still retained the preference of agnates over cognate heirs.
§ That is, the Quranic class recognizes the female agnates’ right to inherit a share much like their male counterparts.
§ The position of the Quranic heirs and the customary heirs with respect to inheritance differs in two cases:
§ If the Quranic heir is more in proximity to the deceased than to a customary heir, the Quranic heir gets a portion of estate first and then the residuary is given to the customary heir.
§ If both the Quranic and customary heirs are equally close, the customary heir gets double of the amount of share given to the Quranic heir.
LIST OF QUR’ANIC HEIRS:
1. Father
2. Mother
3. Husband
4. Wife
5. Daughter
6. Son’s daughter (granddaughter through son)
7. Full sister
8. Paternal sister
9. Maternal brother
10. Maternal sister
EXAMPLES OF CUSTOMARY HEIRS:
1. Son
2. Grandson (through son)
3. Brother (full, paternal)
4. Nephew (son of a brother)
5. Uncle (paternal uncle, full or half)
6. Male cousins (especially paternal)
§ Even though the agnates are given preference in inheritance over cognates, they’re not completely excluded from the scope of succession, as cognates such as uterine brothers and uterine sisters are included.
§ Agnate means a person related to wholly through males either by blood or by adoption. The agnatic relation may be a male or a female.
§ Cognate means a person related not wholly through males. Where a person is related to the deceased through one or more females, he or she is called a cognate.
§ Under the Hanafi law, the heirs of the deceased are either sharers or residuaries, and in the absence of both of these classes of heirs, the estate is passed down to other relatives of the deceased, who fall under the category of “distant kindred”.
In case of absence or some inability that restricts the distant kindred from inheriting, the estate is passed on to the state by escheat, meaning that if a Muslim dies heirless, then the property is devolved on to the state.
SHIA LAW OF INHERITANCE
§ The Shia law of inheritance is guided by the general principles of the Ithna-Ashari law.
§ The Quranic rules here are interpreted very widely, unlike the strict interpretation followed by the Sunni law.
§ This causes a very significant divergence in the principles and rules of succession under Shia laws, leaving them with an almost independent scheme of succession.
§ Shia law follows per strip distribution, i.e., the distribution of property among the heirs is based on the strip they belong to.
§ The Shia law does not prioritise the rights of agnates over cognates or of males over females with respect to inheritance.
§ But there is a certain exception to the rights of husband and wife – the estate of the deceased devolves to the blood relations equally, and the females are allowed only half of the share of the males in each class.
§ Therefore, there is no hierarchy with respect to who inherits the estate first between the descendants, ascendents, and collaterals, as they all inherit side by side.
§ Thus, the shias right to inheritance is based upon two categories of relations:
1. Nasab – blood relationships or consanguinity;
2. Sabab – special cause or heirs by affinity, through marriage.
THE RULE OF SPES SUCCESSIONIS
§ The doctrine of spes successionis is an important rule relating to the transfer of property.
§ Spes successionis is a Latin maxim that translates to ‘expectation of succession’.
§ It means a person who is the apparent heir of another person is expected to succeed to his estate after the death of that person.
§ The rule states that just because a person is expected to inherit a property after the death of another person, it does not mean that it amounts to him having an interest in that property.
§ Thus, mere ‘expectation’ or ‘chance’ to succeed to a property does not provide him with any legal right over the property.
§ The transferability of a Spes Successionis is prohibited in Indian law under the provision of Section 6(a) of the Transfer of Property Act, 1882.
§ Thus, the transfer of spes successionis is considered the renunciation of the chance of succession. The chance of a Muslim heir – apparent succeeding an estate cannot be the subject of a valid transfer or release.
CLASS OF HEIRS UNDER MUSLIM LAW
§ Both the Shia and Sunni schemes of inheritance consist of sharers and residuary classes of heirs. However, there are differences in the arrangement, hierarchy, and distribution of shares between the two.
CLASS OF HEIRS UNDER HANAFI LAW
§ The heirs of a deceased Muslim fall under the following classes –
1. Sharers (class I heirs)
2. Residuaries (class II heirs)
3. Distant kindred relations (class III heirs)
CLASS – I HEIRS
§ The sharers fall under class I heirs, and there are 12 relatives of the deceased on the list of sharers.
1. WIFE (WIDOW) –
§ Takes 1/8 (one-eighth) part of share if she has children and ¼ in case of her being childless. She can never be excluded.
2. HUSBAND (WIDOWER) –
§ Gets 1/8 (one-eighth) shares, but in case he is childless, the share portion increases to 1/2 (one-half). He can never be excluded.
3. DAUGHTER –
§ A single daughter gets 1/2 (one-half) shares. If there are two or more then they take 2/3 (two-thirds) of shares together. In the presence of a son, she becomes a residuary. She can never be excluded.
4. SON’S DAUGHTER –
Gets 1/2 (one-half) shares and if two are more then, 2/3 (two-thirds) shares. Share is reduced to 1/4 (one-fourth) when there is only one daughter and to 1/8 (one-eight) in presence of one higher son’s daughter. In the equal presence of a son’s son, she becomes a residuary. Can be excluded under certain conditions.
1. FULL SISTER –
§ A full sister gets 1/2 (one-half) shares and in case there are two or more in number they together take 2/3 (two-thirds) shares. In the presence of a full brother, she becomes a residuary. Can be excluded under certain conditions.
2. CONSANGUINE SISTER –
§ Gets 1/2 (one-half) shares and 2/3 (two-thirds) together if there are two or more. In presence of a full brother, share gets reduced to 1/6 (one-sixth) and in presence of a consanguine brother, she becomes a residuary. Can be excluded under certain conditions.
3. UTERINE SISTER –
§ Gets 1/6 (one-sixth) shares if single and 1/3 (one-third) together if two are more in number. Can be excluded under certain conditions.
4. UTERINE BROTHER –
§ Gets 1/6 (one-sixth) shares if single and 1/3 (one-third) together if two are more in number. Can be excluded under certain conditions.
5. MOTHER –
§ Gets 1/6 (one-sixth) shares and never excluded. Share increases to 1/3 (one-third) if there is no child or no son’s child or if she has a sibling. If the husband or wife of the deceased exists, then she gets 1/3 (one-third) of shares after deducting the shares of the husband or wife.
6. FATHER –
§ Gets 1/6 (one-sixth) shares and is never excluded. When there is no child or son’s child then he becomes a residuary.
7. TRUE GRANDMOTHER –
§ Gets 1/6 (one-sixth) shares. Under certain exceptions she can be excluded.
8. TRUE GRANDFATHER –
§ Gets 1/6 (one-sixth) shares. Under certain exceptions he is excluded. If there is no child or son’s child, he becomes a residuary.
CLASS – II HEIRS
§ The Quranic residuaries and the general residuaries constitute the class – II heirs. Quranic residuaries are those members who were originally sharers who become residuaries due to certain conditions or presence of a higher degree heir.
There are 5 Quranic residuaries –
1. DAUGHTER –
§ Becomes a Quranic residuary due to the existence of a son of the deceased.
2. SON’S DAUGHTER –
§ Becomes a residuary due to the presence of a son’s son or a male agnatic heir in a lower degree
3. SON’S SON’S DAUGHTER –
§ Becomes a residuary due to the presence of a son’s son’s son or a male agnatic heir in lower degree.
4. FULL SISTER –
§ Becomes a residuary due to the presence of a full brother
5. CONSANGUINE SISTER –
§ Becomes a residuary due to the presence of a consanguine brother
§ The residuaries can be classified into three categories –
THE ASCENDANTS –
§ The parents, grandparents the other relation who precede or ascent directly to the deceased.
THE DESCENDANTS –
§ Individuals succeeding in the direct biological line of the deceased, like children, grandchildren, and so on.
THE COLLATERALS –
§ Individuals who are descendants in parallel lineage of the ancestors of the deceased but are not direct blood relatives. Eg., consanguine brothers, sisters, paternal aunts and uncles. Maternal aunt and uncles etc.
§ The collaterals can be further divided into the descendants of father and the descendants of grandfather.
DESCENDANTS
1. Son
2. Son’s son howsoever low
ASCENDANTS
3. Father
4. True grandfather
COLLATERALS –
Descendants of the father
1. Full brother
2. Full sister
3. Consanguine brother
4. Consanguine sister
5. Full brother’s son
6. Consanguine brother’s son
7. Full brother’s son’s son
8. Consanguine brother’s son’s son
COLLATERALS –
§ Descendants of the true grandfather
9. Full paternal uncle
10. Consanguine paternal uncle
11. Full paternal uncle’s son
12. Consanguine paternal uncle’s son
13. Full paternal uncle’s son
14. Consanguine paternal uncle’s son’s son
CLASS – III HEIRS
§ In the absence of both sharers and residuaries, the estate of the deceased is devolved to the distant kindred.
§ All those blood relations that did not make it to the list of sharers and residuaries are constituted in this class, which includes female agents and the male and female cognates.
§ The distant kindred can be categorized under descendants, ascendants, and collaterals. The number of collaterals, ascendants, and descendants is limitless, and relations of all degrees are included.
DESCENDANTS
1. Daughter’s children and their descendants however low
2. Son’s daughter’s children and all the succeeding descendants however low
ASCENDANTS
1. False grandfather how so ever high
2. False grandmother how so ever high
§ (False grandfather: mother's father (maternal grandfather), father's stepfather, mother’s stepfather)
COLLATERALS –
§ descendants of parents
1. Full brother’s daughters and their descendants
2. Consanguine brother’s daughter and her descendants
3. Uterine brother’s children and their descendants
4. Full brother’s sons’ daughters and their descendants
5. daughters of consanguine brother’s sons and their descendants
6. Children of sisters (full, consanguine or uterine)
COLLATERALS –
§ descendants of immediate grandparents (false or true)
1. Full paternal uncle’s daughters and their descendant s
2. Consanguine paternal uncle’s daughters and their descendants
3. Uterine paternal uncles and their children and their descendants
4. Daughters of pull paterna; uncle’s sons and their descendants
5. Daughter of consanguine paternal uncle ‘s sons and their descendants
6. Paternal aunt’s (full, consanguine or uterine) and her children and their descendants
7. Maternal uncles and aunts and their children and descendants
§ Descendants of remote grandparents (true or false) how so ever high.
§ In the absence of heirs in all three classes, the estate passes onto the state by way of escheat.
CLASS OF HEIRS UNDER SHIA LAW
§ The Shia Muslim heirs fall under two classes –
1. Heirs by marriage – the husband and wife
2. Heirs by consanguinity
§ Under the Shia scheme of heirs, the husband and wife are never excluded, and thus they always inherit with all other classes of heirs. The class of distant kindred is not recognised under Shia law.
CLASS – I HEIRS
1. Husband
2. Wife
3. Father
4. Mother
5. Daughter
6. Son
7. Grandchildren
8. Remote lineal descendants (Son’s son = remote lineal descendant)
CLASS – II HEIRS
Class – II constitutes heirs by consanguinity, with three sub – categories, say, a, b and c, with priority of heirs decreasing from a to b.
CLASS II INCLUDES:
1. GRANDPARENTS
§ Paternal grandfather
§ Paternal grandmother
§ Maternal grandfather
§ Maternal grandmother
2. BROTHERS AND SISTERS
§ Full brothers and full sisters
§ Paternal brothers and sisters
§ Maternal brothers and sisters
3. CHILDREN OF BROTHERS AND SISTERS
(I.E., NEPHEWS AND NIECES)
§ If a Muslim dies without leaving any heirs to inherit his or her property, it passes to the state by escheat.
DOCTRINE OF RADD AND AUL
§ The shares are distributed to the heirs in fractions.
§ When situations arise where these fractions do not add up to unity, that is, where the fractions are more or less than unity, the doctrines of return (Radd) and increase (Aul) are applied.
§ By applying these doctrines, shares among the heirs can be increased or decreased.
§ It is important to note that both of these doctrines are recognized in the Sunni laws, however, the Shias do not recognize the doctrine of Aul.
DOCTRINE OF RADD
§ After the shares are distributed to the sharers and there is a residuary share left but there is no residuaries to take it,
§ the residuary shares are re-distributed among the shares in proportion to their shares.
§ The residue property is not transferred to the distant kindred in the absence of a residuary heir. The right of the sharers to get the residue shares in the absence of residues is called the Doctrine of Radd or return.
§ For example, a mother and a daughter, both being sharers, get 1/6 (one-sixth) and 1/2 (one-half) property respectively. Adding these shares together, we end with 2/3 (two-thirds) fraction which is less than unity (1). Thus, the remaining 1/3 (one-third) share is the residue. If there are no residuary heirs, this share, by the application of the doctrine of Radd, will be distributed among the shares again.
DOCTRINE OF AUL
§ If the total of the shares allotted to the sharers is more than unity (1),
then the excess amount is deducted from the daughter or daughters or from the consanguineous or full sister or sister.
§ For example, if a Muslim woman dies, leaving her husband, father and 2 daughters, then each will get a share of 1/4 (one-fourth), 1/6 (one-sixth) and 2/3 (two-thirds) respectively and this adds up to 13/12 (thirteen-by-twelve) which is more than unity.
§ By the application of the Doctrine of Aul, firstly the denominators are made common and are increased to the total sum of sharers.
§ Hence 12/13 (twelve-by-thirteen) becomes 13/13. Then, new fractions of shares are allotted to the sharers, whereby the husband, father, and the two daughters get 3/13 (three-by-thirteen), 2/13 (two-by-thirteen) and 8/13 (eight-by-thirteen) respectively.
PROCEDURE OF INHERITANCE UNDER MUSLIM LAW
§ The Muslim laws only laid down a process for distribution of the estate after a person’s death and did not contain any procedure regarding administering an estate to the heirs.
§ Thus, the administration of the estate of a deceased person is governed by the Indian Succession Act, 1925.
§ The procedure of inheritance under Muslim law is carried out as follows-
1. An executor or administrator of a deceased Muslim is appointed as his legal representative. The executor cannot be a non-muslim.
2. The executor collects the assets, discharged debts and dues, pays legacies and distributes the remaining assets among the heirs.
3. For the purpose of realisation of debts, a probate has to be obtained where the deceased had died testate (with a will). In case if the deceased had died intestate (without a will), then a letter of administration is obtained and produced before the court of law.
4. The payment of funeral expenses and debts of the deceased are fulfilled by the executor and he begins to act as an active trustee for the bequeathable one-third shares and bare trustee to the heirs for the remaining two- third shares.
5. The probate or the letters of administration with the will (oral or written) is annexed and produced before the court. After they are granted, the claim of the executor to represent the estate for all purposes is established.
6. If the executor fails to obtain the probate, then the court appoints another person as the administrator with the copy of the will annexed. If the letter of administration may be granted to the heir, legatee or a creditor if the deceased.
7. Any person who has an interest in the property or estate of the deceased may file a suit for administration of the estate, to ascertain debts and liabilities, to allocate debts to relatives to whom different rules of descent apply, and for declaration and delivery of interest.
§ The appointment of an executor or administrator is essential to the process. But if a Muslim dies without appointing an executor, then the property of the deceased vests in the heirs.
§ The heirs act as the legal representatives of the deceased.
§ But in this case, it is necessary to obtain a certificate under the administrator general’s act or a succession certificate under the Indian succession act, 1925.
§ Without these certificates, it will not be possible to take legal action against the debtors of the deceased.
DIFFERENCE BETWEEN INHERITANCE AND SUCCESSION
§ Even though succession and inheritance are interlinked by meaning, the Indian laws recognise them as two separate legal concepts while dealing with transfer of property.
§ Succession is the process by which an estate, its rights and liabilities are transferred from one person to another.
§ Succession is the determination of who is entitled to inherit the estate of the deceased. While, inheritance is the process of transferring the ownership and interest in property of the deceased to his or her legal heir.
§ With respect to Muslim personal laws, succession involves transfer of rights, responsibilities, and obligation onto the legal heir upon the death of the person.
§ It encompasses inheritance, distribution of property, transfer of assets, guardianship and other roles.
Inheritance, under the islamic laws, refers to the distribution of property among different classes of heirs in accordance with the specific shares and portions allocated for each category.
