Submitted by Rohini Kamble
Muslim Law of Inheritance did not have its origin from Quranic principles it was derived from the customs prevalent among the tribes of Arabia. Muslim Law differs from other laws prevalent in India. It does not recognize the concept of joint or undivided family, co-parcenary and karta. There is also a big difference between the laws relating to Shias and Sunnis.
II] GENERAL PRINCIPLES
1) Which law prevails:
After the death of a Muslim his property has to be distinguished according to the law of the school to which he belonged at the time of his death. The school of law to which his heirs belong is immaterial.
2) Heritable property:
There is no distinction between movable and immovable property or separate and ancestral property as the Muslim Law does not recognize the joint family system and whatever property remains after the deduction of charges which includes funeral expenses, unpaid and legacies is inheritable property.
A Muslim without the consent of the heirs cannot bequeath more than one third of his estate. If he makes a will two third of the property would go intestate and if he does not then entire property would go by intestate succession.
3) Joint Family System not recognized:
Joint Family system is not recognized by the Muslim Law even if the members of the family live together they do not constitute a joint family even if these members run a business together it is not considered to be a joint family firm. The right of such members are governed by the express or implied agreement.
4) No rule of primogeniture:
SUNNI LAW: Rule of Primogeniture is not recognized under Muslim Law i.e. if a man leaves many sons the eldest gets the advantage over rest.
SHIA LAW: Shia Law recognises Habua i.e. the deceased father's wearing apparel, the Quran his ring and his sword become the property of the eldest son.
5) Right of Heir Presumptive spes Succession: By mere birth a child or any other heir does not acquire any interest in the property of a person. The right of a heir presumptive comes into existence only on the death of the propositus. In case the heirs survive the propositus then they have a mere chance of inheriting the estate i.e a mere spes of succession but this cannot be the subject of valid transfer.
The court in Hasan v. Nazo 1889 I.L.R 11 ALL 456; dismissed a suit stating that the nature of right claimed was only a spes of succession and had no cause of action.
6) Vested Inheritance:
Vested Inheritance is nothing but the share which vests in a heir at the time of the death of the person whose property is claimed if in case an heir dies before the actual distribution of the property the share of inheritance which has been already vested in him will pass on to his heirs. The succession thus is never allowed to be in abeyance.
7) Principle of Representation:
SUNNI LAW: Sunni Law does not recognize the principle of representation. Therefore, the expectant right from an heir presumptive does not pass to his heirs if in case the heir presumptive dies in the life time of the propsitus. Then his heirs cannot claim the property of the propositus as representing heir. In Mooda Cassim's case the privy council held that it is a well known principle of Muhammadan Law that if any of the children of a man die before the opening of the succession to his estate leaving children behind their grand children are entirely excluded from the inheritance by their uncles and aunts.
The principle of representation is recognized in sense the succession is per stripes and not per capita. Thus the manner in which they are followed are;
i) The children of deceased daughter take amongst themselves, the share the mother would have taken.
ii) The daughter of a deceased son shares with other children of the deceased son, the share assigned to then father.
iii) The children of each son have the exclusive right to what their father would have taken.
8) Suit be creditor against heirs:
The creditor can proceed against the heirs of the deceased if there is no executor or administrator. In case the estate of the deceased has not been distributed amongst the heirs then he can execute the decree against the property as a whole.
9) Life estate and vested remainder:
The privy council observed in Hameed v. Budlun, "creation of a life estate does not seem to be consistent with Muhammadan usage and there ought to be very clear proof of so unusual a transaction." There is a difference between copus of the property and usufruct of the property under Muslim Law.
III] DOCTRINE OF INCREASE (AUL)
Under Muslim Law there are various shares which are fixed. But sometimes the total of the share that are entitled to inherit may exceed unity.
# Illustration: A Muslim woman 'W' dies leaving behind her parents M and F, her husband H and three daughters D1, D2, and D3. Here the share of H will be 1/4th, the share of M and F will be 1/6th and daughters will collectively take 2/3rd of the share. The sum total will be (1/4 + 1/6 + 1/6 + 2/3) = 15/12. This exceeds the unity therefore we take common denominators. Applying the doctrine of 'Aul'; The denominator is increased to the numerators do that shares equal unity. The increase here is referred to the increase in the denominator to reach unity. Under Sunni law this doctrine is applied to all shares equally. Under Shia Law the doctrine implies only to the daughters full or consanguine sisters only.
IV] DOCTRINE OF RADD (RETURN)
After assigning the shares to the sharers, still the property is not exhausted and if there are no residuaries the residue will revert back to the sharers and does not devolve onto the distant kindred. This is doctrine of Radd. The surplus reverts back in proportion to the shares. This is done by reducing the common denominator to the sum of the numerators. There is an exception to the doctrine of Radd and that is - The husband or wife of the deceased are not entitled to share in the return. Thus the same shall devolve onto distant kindred. In the absence of all other heirs, only then can the husband or wife of the deceased take share in the property.
Submitted by Rohini Kamble