This Article is written by Ushna saha & this article discuss the concept of Principle of Inheritance Under Muslim Law
Introduction
Sharia law is a religious law that governs the spiritual, mental, and physical behaviour of Muslims. It is the Islamic legal system and is considered to be God’s command for Muslims. In India these in principle were incorporated in the Indian law system under The Muslim Personal Law Application Act, 1937. Muslims are bound by the Indian Succession Act, 1925. Inheritance is not guaranteed to every child that is born into the family; inheritance is not a birth-right under Muslim law. Under Islamic laws, male and female heirs alike have the right to inherit property.
Muslim law constitutes the four sources of Islamic law:
1. The Holy Quran-This serves as the primary source of guidance for inheritance laws
2. The Sunna – this is the practice of the Prophet
3. The Ijma – this is the consensus of the learned men of the community on what should be the decision on a particular point
4. The Qiyas – this is an analogical deduction of what is right and just in accordance with the good principles laid down by God.
There are also secondary sources which can be used to issue legal and moral opinions about practices and acts that are not explicitly mentioned in the primary sources. This process is called ijtihad.
Heirs recognized by Muslim law:
Muslim law recognizes two types of heirs, Sharers and Residuaries. Certain heirs are entitled to fixed shares, which are predetermined percentages of the estate. Sharers are individuals who have a designated entitlement to a specific portion of the deceased person’s property, while Residuaries are those who inherit the remaining share of the property.
Sharers:
They are mainly 12 in number and are as follows:
(1) Husband (2) Wife,
(3)Daughter (4) Daughter of a son
(5) Father (6) Paternal Grandfather
(7) Mother (8) Grandmother on the male line,
(9) Full sister (10) Consanguine sister
(11) Uterine sister (12) Uterine brother
The share taken by each sharer will vary in certain conditions. For example: wives are entitled to one-eighth or one-fourth of the estate, depending on the presence of other heirs.
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Indian Succession Act, 1925:
The Indian Succession Act of 1925 defines a succession certificate as a court-issued document provided to the legal heirs of a deceased individual. Its purpose is to verify the authenticity of the heirs and grant them the authority to inherit the debts, securities, and other assets of the deceased. The scope of a succession certificate is specific, primarily pertaining to debts and securities such as provident funds, insurance, bank deposits, shares, and other government securities entitled to the deceased. Its primary aim is to streamline the collection of debts during succession while ensuring protection for parties making debt payments to the representatives of the deceased person.
Birthright:
Inheritance of property in Muslim law comes only after the death of a person, any child born into a Muslim family does not get his right to property on his birth. When an heir survives after the death of the ancestor, he becomes a legal heir and is therefore entitled to a share in the property. However, if the apparent heir does not survive his ancestor, then no such right of inheritance or share in the property shall exist. With the current laws, a non – Muslim is not eligible to seek inheritance from a Muslim.
Difference between Shia and Sunni sects
Sunni sect:
- Quranic heirs, also known as Sharers, are comprehensively addressed in the Quran regarding inheritance. This primary class of heirs includes specific close relatives of the deceased, each allocated a distinct share as outlined in the Quran. The shares are determined by fractional values specified in the holy Quran, namely 1/4, 1/8, 2/3, 1/3, and 1/6, representing the highest obligatory sense known as Farida. The 12 Quranic heirs consist of four men and eight women, encompassing relationships such as Father, Grandfather, Husband, Uterine brother, Uterine sister, Wife, Daughter, Son’s daughter, Full sister, Consanguine sister, Mother, and Paternal or maternal grandmother.
- Residuaries, or Agnatic heirs (Asabat), constitute the second class of heirs after Shares and are regarded as near male agnates. The term “residuary” implies a fractional share taken from the estate, with the remaining portion left to this class of heirs. Unlike Sharers, the shares of Residuaries are not fixed. Residuaries are further categorized into Ascendants, Descendants, Descendants of father, and Descendants of father’s father, regardless of how high.
Rules governing shares of Residuaries include:
Rule 1: Each preceding residuary excludes all succeeding residuaries.
Rule 2: In the presence of a female residuary alongside a male, the male takes double the share of the female.
Rule 3: The only female residuaries are daughter, son’s daughter, full sister, and consanguine sister.
Uterine heirs, or Distant kindred (zawul Arham), encompass all persons related to the deceased by blood, irrespective of gender, excluding those falling under Quranic heirs or residuaries. Distant kindred succeed only in cases where no shares or residuaries exist, as they are excluded by these primary classes. An exception to this rule is when the only heir is the husband or wife, as they do not preclude distant kindred from inheriting.
Rules governing shares of Uterine heirs include:
Rule 1: The first class of distant kindred excludes the second.
Rule 2: The nearer in degree excludes the more remote.
Rule 3: Among members of the same class and degree, children of shares and residuaries are preferred over those of distant kindred.
Rule 4: Subject to the above rules, a male inherits double the share of a female.
Shia sect:
In the Shia school of Islam the surviving spouse always inherits a fixed portion, but all other relatives are divided into three classes:
(1) parents and lineal descendants;
(2) grandparents, brothers and sisters
(3) uncles and aunts and their issue.
Relatives in class 1 preclude those in class 2, and in turn, relatives in class 2 exclude those in class 3.. In each class, closer relatives take precedence over more distant ones, and full-blood relatives are prioritized over half-blood relatives. The male relatives typically receive double the share of their female counterparts, Shia law exhibits are more favourable towards women inheritance share as compared to Sunni law. In the mentioned scenario, the wife would be entitled to one-fourth, with the remaining three-fourths going to the daughter’s son or daughter, rather than the agnatic cousin.
References
- Diwan, Paras and Diwan, Peeyushi (2016) Muslim law in Modern India. Faridabad, Haryana: Allahabad Law Agency.
- https://lawcorner.in/general-principles-of-inheritance-under-muslim-law/#Distribution_of_Property_under_Muslim_Law
