Inheritance under Muslim Law

In loose terms, Inheritance is the transfer of property/estate objects of a dead person to the living person. Inheritance under Muslim Law can be divided into parts: testamentary(Wasiyat) and Intestate. This article will be focusing on intestate laws of succession.

TO KNOW ABOUT WASIYAT, CLICK HERE.

INTRODUCTION

Inheritance is nowhere defined in Quran. According to Abdur Rahim Inheritance under Muslim Law is the transfer of deceased’s rights and obligations to the heir. According to Coulson, it is the distribution of assets/estate of the deceased that remain after the satisfaction of his funeral expenses, debts, and valid bequest. Whenever a Muslim dies some important duties needs to be performed like funeral and burial payment, debts payments, testamentary will’s execution and then what is left is distributed according to intestate laws of succession.

Inheritance under Muslim law is based on pre-Islamic customs and usage prevailing amongst the Arabs and Quran and the traditions of Prophet.

GENERAL PRINCIPLES OF INHERITANCE

1. Under Muslim Law, the right of an heir, for the first time, comes into existence on the death of his relatives. Right by Birth is unknown to Muslim Law.
2. Heirs take a vested interest in the property as soon as the successions open. Even if they die, their vested interest is passed onto their legal heirs. If A dies leaving son B and C, and before there could have been an actual distribution of property, B dies. His right is passed on to his son D.
3. Under Muslim Law, eldest son has a preferential claim over his father’s property.
4. Inheritance under Muslim Law does not recognise Doctrine of representation. Here nearer relatives exclude remoter relative.

HEIRS IN INHERITANCE UNDER MUSLIM LAW

In Islam, there are three kinds of legitimate heirs: –

1. Primary Heirs – heirs of the primary category are also known as Ashab-ul-furud. Their share is clearly stated in Quran and cannot be altered by any human effort. There are 12 primary heirs
   1. Husband
   2. Wife
   3. Father
   4. True Grandfather
   5. Mother
   6. True Grandmother
   7. Daughter
   8. Son’s daughter
   9. Full Sister
   10. Consanguine Sister
   11. Uterine Brother
   12. Uterine Sister
2. Residuaries (Agnatic Heirs) – they are also known as Al-Asabat or Agnatic heir. They don’t have a prescribed share. As the name suggests they inherit after the allotment among primary share. They inherit through male relations only. Following are the Residuaries in order of succession-
   1. Descendants – son, son’s son.
   2. Ascendants – father, true grandfather
   3. Collaterals – full brother, full sister, consanguine brother and sister, etc
   4. Collaterals (descendants of true grandfather)- full paternal uncle, consanguine paternal uncle, etc.
3. Distant Kindred – All the blood relatives who do not find their place in sharers or Residuaries are called distant kindred. These are female agnates and cognates both male and female.

SCHEME OF SHARES

HUSBAND:

• In case where there is no child/grandchild surviving the dead person: ½
• In case if there is a surviving child/grandchild of the deceased person: ¼

WIFE:

• Suppose there is no child/grandchild surviving the deceased person: ¼
• Suppose if there is a surviving child/grandchild of the deceased person: 1/8

SON:

• In case where there is no daughter of the deceased person: Residuary
• In presence of a daughter (he (son) shares with his sister, but he is entitled to 2 shares for every share given to her): Residuary

DAUGHTER

• In case where she is single (sole) daughter: ½
• If there are 2 or more daughters (the daughter’s portion is shared equally among them), then: 2/3
• But if there is a son (then she shares with her brother, but is entitled to 1 share for every 2 shares given to him (brother)): Residuary

FATHER

• In case if there is a child/grandchild surviving the deceased person: 1/6
• But if there is no child/grandchild surviving the deceased person: Residuary.

MOTHER

• 1/6 Paternal Grandmother (her portion is shared with maternal grandmother): 1/6
• If Mother or Father of the deceased person survives: Nil

PATERNAL GRANDFATHER

• In case if there is no father, child/grandchild of the deceased survives: Residuary
• If son or grandson of the deceased person survives: 1/6
• In case if the father of the deceased person survives: Nil
• Maternal Grandmother (her portion is shared with paternal grandmother): 1/6
• If Mother of the deceased person survives: Nil

BROTHER

• In case if the father, son/grandson of the deceased person survives: Nil
• If there is no father, son/grandchild of the deceased person survives: Residuary

SISTER

• In case if the father, son/grandson of the deceased person survives: Nil
• In case if she is the sole sister: ½
• If there are 2 or more sisters (they share equally): 2/3
• If Brother of the deceased person survives (they share 2:1 with Brother): Residuary

CONCLUSION

Inheritance under Muslim Law looks complicated but is very unambiguous. Laws of succession under Muslim Law is so articulate that it is praised all over the world. Nearly all the modern writers have praised Inheritance under Muslim Law for its practicality and utility. Mac Naughton has very truly observed that …it is difficult to conceive any system containing rules more strictly just and equitable. A very reasonable balance has been maintained between proximity and amount of share given to heirs.

Written By Ankit Raturi, University School of Law and Legal Studies

DO READ:

Rule of law in India

Concept of Mutawalli under Muslim Law

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