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Muslim Succession Laws in India

Updated: May 21

In India, The Muslim law of succession is regulated according to the Muslim Personal Law (Shariat) Application Act, 1937. It is a legal framework that governs the inheritance and distribution of property among Muslims. It is rooted in four primary sources of Islamic law, which include the Holy Quran, the Sunna (the practice of the Prophet), the Ijma (consensus of learned community members), and the Qiya (analogical deduction based on divine principles). This article explores the key principles and nuances of Muslim law of succession, shedding light on the categories of heirs, inheritance methods, rights of females, and various legal considerations.

No Right by Birth:

Under Muslim law, the right to inherit property arises after the death of the ancestor. In other words, children born into a Muslim family do not automatically gain inheritance rights at birth. Inheritance rights are contingent on surviving the ancestor. The distribution of property can be done through per capita or per stripe methods, with Sunnis favoring the former and Shias the latter.


Types of 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.


Limitation on Will Process:

A Muslim can execute a will only to the extent of 1/3rd share of the property. Rest (2/3rd) has to be distributed as per the rules of succession to the heirs. Categories of Heirs under Muslim Law:

In Muslim law, there are two main categories of heirs they are Sharers and Residuaries. Sharers, the ones who are entitled to certain share in the deceased’s property. Husband, Son, Daughter of Son, Father, Mother, Full Sister, uterine sister are sharers.

Residuaries, the ones who would take up the share in the property that is left over after the sharers have taken their part. Wife, Daughter, Paternal Grand father, Grand mothers on the male line, Consanguine Sister, Uterine brother etc., are Residuaries. Are you looking for a legal advice regarding property matters, connect with our team of expert Advocates.


Distribution of the Property under Muslim law in India:

Under the Muslim law, distribution of property can be made in two ways – per capita or per strip distribution. The per capita distribution method is majorly used in the Sunni law. According to this method, the estate left over by the ancestors gets equally distributed among the heirs. Therefore, the share of each person depends on the number of heirs. The per strip distribution method is recognised in the Shia law. According to this method of property inheritance, the property gets distributed among the heirs according to the strip they belong to. Hence the quantum of their inheritance also depends upon the branch and the number of persons that belong to the branch.


Distribution of Shares in Property under Islamic Law in India:

Husband's Share:

Childless Couple: The husband is entitled to half (1/2) of his wife's property.

With Children: The husband's share decreases to one-fourth (1/4) of the wife's property.

Wife's Share:

Childless Couple: The wife is entitled to one-fourth (1/4) of her husband's property.

With Children: The wife's share decreases to one-eighth (1/8) of the husband's property.

Daughter's Share:

Sole Daughter: A sole daughter inherits half (1/2) of the estate.

Multiple Daughters: If there are two or more daughters, they collectively inherit two-thirds (2/3) of the estate.

With Sons: If there are sons, the sons receive double the share of the daughters. Daughters still inherit directly, but in proportion to the son's share (i.e., sons get twice the share of each daughter).

Son's Share: Sons receive double the share of daughters.

Example: If the estate is divided into parts, each son gets 2 parts while each daughter gets 1 part.

Mother's and Father's Share:

Mother: The mother is entitled to one-sixth (1/6) of the estate if there are children or multiple siblings. If the deceased has no children and only one sibling, the mother’s share is one-third (1/3).

Father: The father is also entitled to one-sixth (1/6) of the estate when there are children. Additionally, he may receive the remaining estate after other fixed shares are distributed.

Exclusion of Heirs of Predeceased Son or Daughter:

Generally, the heirs of a predeceased son or daughter (e.g., grandchildren) do not inherit directly under traditional Islamic law, but in some cases, they may inherit through a system of representation or a will (wasiyyah).

Rights of females: Muslim does not create any distinction between the rights of men and women. On the death of their ancestor, nothing can prevent both girl and boy child to become the legal heirs of inheritable property. On the death of their ancestor, nothing can prevent both girl and boy child to become the legal heirs of inheritable property. However, it is generally found that the quantum of the share of a female heir is half of that of the male heirs. The reason behind this is that under the Muslim law a female shall upon marriage receive mehr and maintenance from her husband whereas males will have only the property of the ancestors for inheritance. Also, males have the duty of maintaining their wife and children. Widow’s right to succession: Under Muslim law, no widow is excluded from the succession. A childless Muslim widow is entitled to ¼ of the property of the deceased husband, after meeting his funeral and legal expenses and debts. However, a widow who has children or grandchildren is entitled to 1/8   of the deceased husband's property.If a Muslim man marries during an illness and subsequently dies of that medical condition without brief recovery or consummating the marriage, his widow has no right of inheritance. But if her ailing husband divorces her and afterwards, he dies from that illness, the widow's right to a share of inheritance continues until she remarries.

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.

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.

 

Are you looking for a legal advice regarding property matters, connect with our team of expert Advocates.


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