Introduction

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.

As one might know, 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. Islamic laws do not recognise joint tenancy, and
the heirs are tenants-in-common, i.e., they can only seek to inherit the shares
of the property that is held in common. 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. If the
child is stillborn, it will be treated as though it never existed, and thus the
interest in the share of property that was vested in the child is stripped off.

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.

The Islamic scheme of inheritance comprises two kinds of heirs – the Sharers,
or Quranic heirs, and the customary heirs, called the residuaries.

The Quran amended the customary tribal laws of succession to align them with
Islamic philosophy. The major amendment to customary law is the introduction
of the class of ‘sharers’ or ‘Quranic heirs’ which led to the inclusion of heirs who
were previously excluded under the customary succession laws. Therefore, if ‘M’
a Muslim man, dies leaving behind his widow ‘W’ and his sons S1 and S2, then
W, being the sharer, will take 1/8 (one-eighth) of the property and the
remaining 7/8 (seven-eighths) will be allocated to the residuaries – S1 and S2.

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.
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.

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.

Further, the distribution of estates under the Sunni law is per capita, according
to which the estate of the deceased is distributed equally among the heirs.
Thus, the number of shares one gets is proportional to the number of heirs.

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.
In testamentary succession, if the property in question is an immovable
property located in Chennai, West Bengal, or Bombay, then it becomes an
exception, where the Muslims will be bound by the Indian Succession Act, 1925,
rather than Shariat laws.

The rule of spes successionis in Muslim

Law
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.

However, the rule of spes successionis is not recognized in the Muslim law of
inheritance.

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.

In the case of Shehammal v. Hasan Khani Rawther and Ors.(2011), it was ruled
that the doctrine of spes successionis need not be considered in a family
arrangement. In this case, the respondent was one of the heirs-apparent to
inherit a share of the plaintiff’s property. But even before inheriting his share,
the respondent executed a deed with his father to relinquish his rights over the
property in exchange for some consideration. The Apex Court was to decide
whether a Mohammedan can relinquish his right to inherit by way of a family
arrangement even before acquiring the property. It was ruled that the doctrine
of spes successionis can be avoided in family arrangements or in cases of
relinquishment of inheritance rights over consideration.

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
2. Residuaries
3. Distant kindred relations

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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. True grandmother – gets 1/6 (one-sixth) shares. Under Certain
exceptions she can be excluded.
12. 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 Q uranic residuaries –

 1. Daughter – becomes a koranic 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

5. Full brother
6. Full sister
7. Consanguine brother
8. Consanguine sister
9. Full brother’s son
 10. Consanguine brother’s son
11. Full brother’s son’s son
12. Consanguine brother’s son’s son

 Collaterals – descendants of the true grandfather

13. Full paternal uncle

14. Consanguine paternal uncle
15. Full paternal uncle’s son
16. Consanguine paternal uncle’s son
17. Full paternal uncle’s son
18. 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 categorised 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

 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
Under Shia Law, all Sharers are not Class – I heirs.

1. Husband
2. Wife
 3. Father
4. Mother
5. Daughter
6. Son
7. Grandchildren
8. Remote lineal descendants

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.

1. 1. Parents
2. Children and succeeding descendants

2. 3. Grandparents (both true and false )

4. Brothers, sisters and their descendants

3. 5. Paternal uncles and aunts of the deceased, the parents and

grandparents and their descendants of all degrees
6. Maternal uncles and aunts of the deceased, their parents and grandparents
and their descendants of all degrees

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 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.

Judicial pronouncements

Abdul Majid Khan Sahib v. Krishnamachariar

(1916)
In this case, the court addressed the question of whether the sale of property
by a co-heir who is in possession of the whole or part of the estate of the
deceased, for the purpose of discharging the debts of the deceased, is binding
on the other co-heirs or creditors of the deceased. The court observes that after
the death of the deceased, one portion of the estate goes toward fulfilling the
funeral expenses and the debts of the deceased, and the remaining portion is
distributed to the heirs. Citing precedents, the court remarked that one co-heir
does not have the right or authority to deal with the shares of the other co-heirs
in the Muslim legal system. Thus, one co-heir cannot perform any act involving
the shares of another without consent. He can only transfer his shares to
another co-heir of a third party, subject to certain conditions. A single co-heir
cannot bind other co-heirs in any action, however, if a decree is issued against
one co-heir onto whom all the effects of the deceased are in possession, then
that will be binding on all other co-heirs since a decree passed against the co-
heir is considered to be a decree passed against the deceased and the co-heirs
serve as a representative of the deceased in such a decree.

Therefore, it was concluded that one co-heir cannot bind the others to a
voluntary sale. He can only deal with inherited property in which he has an
interest. He does not have the authority to represent the others, even for the
purpose of paying off debts.

Imambandi v. Sheikh Haji Mutsaddi (1918)

In this case, a man named Ismail Ali Khan died, leaving behind three widows
and several children. The petitioner, Enayet-uz-Zhora is one of his widows. She,
along with her two minor children, bought a share of his estate through a suit.
The defendants disputed the legitimacy of her marriage to Ismail and the
children, thus denying her claims over the shares and her right to sell them.
The petitioner contended that her children are legitimate, and she is their legal
guardian and thus entitled to the share of property that belongs to her
children.

The issue dealt with here was whether a mother’s dealings with her minor
children’s property were binding on them.

The court observed that under the Muslim legal system, the mother has the
right to the custody of her minor children, but that does not make her the
natural guardian of the children. In the absence of the father, the paternal
grandfather becomes the natural guardian, and he has full control over the
minors and their affairs. Under Sunni law, after the death of the father, custody
vests in the executor appointed by him. If the father dies without appointing an
executor, then custody devolves to the paternal grandfather. Therefore, it was
held that the petitioner (the mother) had no authority to alienate the property
as she was not the natural or legal guardian of the children.

Illyas and Ors. v. Badshah alias Kamala (1989)

The issue in this case revolves around the property of Munilal, an eunuch.
Munilal had executed a will in favour of Abdul Gafoor, who claimed ownership of
the property. The respondents, an eunuch of Munilal, argued that they followed
a Guru – Chela system, and by this, the eunuchs formed a separate class of
heirs themselves, and they followed a custom of property transfer among their
community. Thus, the respondent, being a disciple of Munilal, claimed
ownership over the property and argued that the will in favour of Abdul was
forged. The trial judge passed a decree in favour of the respondent and
declared the appellant’s will null and void.

The trial judge’s decision was challenged by the appellant in the High Court,
where the bench was to deal with the issue of whether the will executed by
Munilal in favour of Abdul Gafoor was valid or not, considering the customs
among eunuchs in Muslim law.

The appellant argued that Munilal, just like any other Muslim, had the right to
bequeath his property to him, and the respondent’s claim over the customary
transfer of property should not be recognized as it debars the right of a Muslim
from executing a will in favour of anyone outside the community, and thus, the
custom functions against public policy.

The court, after examining the submission of the respondents, held that the
custom followed by the eunuchs is well recognized. The custom does limit the
choice of the legatee to execute the will, but that does not make the custom
invalid or against public policy. Moreover, the appellant failed to prove the
legitimacy of the will document as it did not meet the requirements of Section
68 of The Indian Evidence Act, 1872. It was also established that the property
of eunuch cannot be transferred by a will to a person outside the community.

Therefore, the decision was held in favour of the respondent, and the appeal
was dismissed.

Rukmani Bai v. Bismillavai (1992)

The deceased in this case left behind a certain amount of money in his
provident fund and EDLI benefits. He had converted to Islam from Hinduism
before his death. The respondent’s daughter applied for a grant of a succession
certificate under Section 372 of the Indian Succession Act, 1925. The appellant,
the niece of the deceased, filed a suit against the succession court’s decision
granting the certificate to the respondent under Section 384 of the Act. The
appellant challenged the respondent and claimed the grant for herself.

The court observed that the deceased had indeed converted to Islam, and the
respondent, being his daughter, was eligible to obtain the succession certificate.
The court noted that under Section 21 of the Principles of Mohammedan Law, in
the absence of a contrary custom, succession of a convert to Islam is governed
by Islamic laws. Further, it cited the precedent set in the case of Mitar Sen v.
Maqbul Rasan Khan (1930), where the privy council held that when a person
changes his religion, his personal laws change, and the new law governs him
and his children alike. The court observed that there was no residuary, and thus
the daughter was entitled to her share and the share of the residuary under
Section 66 of the Mahomedan law. Therefore, the court held that the
respondent was legally entitled to obtain the succession certificate, and due to
the lack of merit on the side of the appellant, the appeal was dismissed.

Mohammed Gani v. Parthamuthu Sowra (2008)

This case involves the distribution of the property of Abdul Rahiman Rowther.
He had divided the property among himself, his first wife, his daughter (the
plaintiff) and his two sons ( the defendants). The plaintiff and the defendants
were minors when the partition deed was created, with their mother as the
guardian.The plaintiff along with the defendants was offered a joint share of
their rice mill which was obtained by their mother, of which the plaintiff seeks
partition of 1/4th of the share for herself. The defendants refused to allow the
plaintiff’s claim. It was argued that the plaintiff, who is married, can only have
1/8 th of share and the defendants were entitled to 7/8th shares according to
the Muslim laws of inheritance. The trial court issued a decree in favour of the
plaintiff, offering her 1/4th of the share. The defendants appealed against this
decision to the Madras High Court.

The High Court remarked that the partition deed did not specify equal
distribution of shares between the plaintiff and the defendants and that the
intention of the deceased was for the parties to jointly enjoy the property.
However, since the partition is sought, Muslim laws of inheritance will apply, by
which the plaintiff is entitled only to 1/8th of shares and the remaining 7/8th
shares to the defendants.

Rijia Bibi and Ors. v. Abdul Kachem and Anr.

(2013)
This case revolves around the validity of the will executed by (Late) Abdul
Khalaque. The plaintiffs are the first wife and the sons born through her and the
defendants are the second wife and her daughter and sons. The deceased left
behind 3.25 acres of land. The plaintiffs claimed partition of the land which the
defendants denied, contesting that the property was bequeathed to them in the
will. The trial court concluded that the will was forged and favoured the
plaintiffs. The defendants filed their first appeal to this judgement, in which it
ruled out the possibilities of the will being forged but held that the will was
invalid and modified the shares to alloted to the plaintiffs. The defendants then
filed a second appeal. The Court upheld the first appeal and stated that the will
was void and inoperative.

The Court referring to Section 118 of principles of Mohammedean law explained

that a Mohammedan will should be within a prescribed limit, must have a
competent legatee and consent of the heirs should be given after the testator’s
death. a muslim can bequeath his property in favour of his heir, provided that
the consent of the other legal heirs are sought after the death of the testator.
When heirs do not question such a bequeathal for a long time, it amounts to
consent. Further, Mohammedan law limits the testator’s power to bequeath
estate exceeding the 1/3 rd of the surplus after the payment of funeral
expenses and debt. Here, the will exceeds the permissible limit, rendering the
will invalid and depriving the plaintiffs of their rightful share.

Jannath Beevi v. Tahsildar (2022)

Here, the petitioner, the wife of the deceased, filed for a legal heirship
certificate for her husband. The petitioner filed for a fresh application, as she
erroneously left out her father-in-law, who is also a valid legal heir. But the
application was rejected on the grounds of error and she wasn’t given a chance
to speak.

The issue was thus, whether the rejection of the petitioner’s application to
include her father-in-law, was justified. The court, referring to the muslim laws
of inheritance, remarked that the father is also a legal heir in line of inheritance
to the deceased’s property. It also noted that the petitioner was not heard,
which is violative of the principles of natural justice.

Thus, the court quashed the order which rejected the petitioner’s application
and remanded it for consideration in accordance with the law and to provide the
petitioner with a fair hearing.

Conclusion
Inheritance for Indian Muslims is governed by their respective personal laws,
which are based on Islamic or Quranic principles. It contains the framework for
how inheritance must pass on within a Muslim family by providing detailed rules
on the scheme of inheritance, distribution, and administration of the estate.
However, Muslim personal laws are quite rigid and not very open to criticism or
amendment. There are standing concerns regarding issues such as,
the inequality in property rights between male and female heirs, exclusion of
step-children, and illegitimate children and non – recognition of adopted
children etc.

Further, there is an ongoing legal and judicial struggle to bring harmony

between personal laws and the constitution, which calls for developing a more
inclusive legal framework that could attempt to balance personal and
constitutional laws.

Frequently Asked Questions (FAQs)

Can a Non-Muslim inherit from a Muslim?
Under traditional Islamic laws, a non – Muslim is not eligible to seek inheritance
from a muslim. But in India, if a Muslim person renounces Islam or ceases to be
a Muslim, he is still entitled to claim shares of property from his deceased
Muslim relative. However, the vice – versa is not true. A person who converts to
Islam will thereafter be governed by Muslim personal laws and thus cannot
claim shares from his non-Muslim relatives.

What is the position of illegitimate children, step –

children and adopted children under the Islamic
rules of inheritance?
Under Hanafi laws, an illegitimate child is not entitled to claim inheritance from
the father, but he or she is eligible to inherit property from the mother and all
other relations from the mother’s side of the family. However, under Sunni
Islam’s Ithana Ashari school of thought, an illegitimate child cannot inherit
property from any of the parents.

Step – children under Mohammedan laws cannot inherit property from their
step parents or their relatives, but a step- brother can inherit from his step-
brother or step- sister.

As for the position of adopted children, it is to be noted that Islam does not
recognise the concept of adoption in the first place, hence, adopted children
have no right over inheritance.

Is an insane or unchaste heir eligible for

inheritance?
Yes, under muslim laws insanity and unchastity is not considered as a ground to
disqualify a Muslim from claiming inheritance. Thus, an heir who is insane or
unchaste is also entitled to inherit.
Can a criminal or convicted person be eligible to
inherit under Muslim laws?
Under Muslim personal laws, an heir being a convict or a criminal does not
automatically disqualify him to inherit his share of the property. However, under
Hanafi law, if an heir is responsible for the death of the deceased whose
property he is to inherit, regardless of the crime being intentional, he is
disqualified to inherit. In the case of Shia laws, the heir is disqualified from
inheritance only if he had intentionally caused the death of the deceased.