The Indian laws of inheritance are religion specific and vary for Hindus, Muslims and Christians etc. This article discusses in the law relating to inheritance in India pertaining Muslims.
Laws of Inheritance for Muslims
The law pertaining to inheritance among Muslims has been discussed in this article. The Muslim law pertaining to inheritance is largely uncodified and arises from the customs and usages, derived from the Quran and various other practices being followed since time immemorial.
The laws of inheritance for the Muslims have not been codified and the inheritance is governed by the traditional rules of inheritance, which are derived from the structure set out by the Quran. These traditional rules were in the later times systematised by various schools of law. The right to inherit property arises immediately on the death of the person. As regards the property for inheritance is concerned, the Muslim Law does not distinguish between movable and immovable property or the ancestral and the self-acquired property.
The Muslims are divided into the following two major sects:-
- Sunnis: the sub-sects of Sunnis are the Hanafis, the Malikis, the Shafeis and the Hanbalis; and
- Shias: the sub-sects of Shias are the Athna-Ashrias, the Ismailyas and the Zaidyas.
Each of the sects is guided by its own laws of inheritance, being the Hanafi Law of Inheritance for the Sunnis and the Shia Law of Inheritance for the Shias.
On the death, the estate that remains for distribution to the heirs is that which remains on the payment and satisfaction of the funeral expenses, decedent’s debts, the deferred portion of a wife’s mahr and any bequests made by the decedent. However, the schools of law differ with regard to the order of payment of these expenses and debts. The school of law for the Sunnis limit the bequests to one-third of an estate, which cannot be granted to an heir unless the other heirs permit.
Rules of inheritance for Sunnis
The inheritance in case of Sunnis provide for the following classes of heirs:-
- Sharers: the Quran has designated 12 heirs (termed as ‘sharers’) to receive fixed shares of the estate. These heirs comprise of father, mother, husband, wife, grandfather, grandmother, daughter, son’s daughter, full sister, paternal half-sister, maternal half-sister, and maternal half-brother. The shares generally range between 1/8th to 2/3rd;
- Residuaries or Agnates i.e. persons wholly related only through males and are known as ‘asaba’. They do not take any fixed share, but receive the residue after the fixed share has been claimed by the sharers;
- Distant Kindred i.e. persons who are more distant relatives of the decedent. They inherit only if there are neither sharers nor residuaries; and
- Unrelated Successors: Such successors are acknowledged kinsman, universal legatee and the government by escheat. These 3 classes take in the order of priority with the acknowledged kinsman succeeding in the absence of the above relations; if there are no acknowledged kinsman, the estate would go to the universal legatee, and finally in case of none existing, the estate shall devolve upon the Government following the principle of escheat.
Despite of the sharers inheriting at the first place, they generally do not take all of the property / estate and receive their fixed share. The portion that remains is passed on to the Instead, they receive their fixed portions and the rest of the estate is passed to the male Agnates / Residuaries. In case of an existing male counterpart, then certain women sharers receive one-half of the share of their male counterpart instead of the fixed share laid down in the Quran.
The children of the decedent’s son or daughter, who predeceased the decedent, are not allowed to inherit in case there is a son surviving; this implies that a son could inherit the entire estate from his parents, with his orphaned nieces and nephews inheriting nothing. However, there is a difference in the rules with regard to a surviving daughter, depending partly on the fact whether the predeceased child was a son or a daughter and whether the grandchildren are males or females.
The adopted children have been excluded from inheriting from their adoptive families.
The relatives who are nearer in degree to the decedent generally exclude those farther in degree, and those of full blood relationships with the decedent are preferred over those related only through the father.
The Sunni rules limit the residuaries to Agnate males, except when certain female sharers turn into residuaries and receive one-half what their male counterparts receive, although the Jaafari rules view female’s kinship relations at par with those of males and provide that a sole surviving daughter can take the entire estate in the same way as a sole surviving son. The Shiite rules under the Jaafari school treat the off-springs from the mother’s side and the father’s side equally i.e. that half brothers and sisters from either parent would be treated equally. The Hanafi and Hanbali schools of law provide that the women sharers can inherit the remainder estate in the absence of residuaries. As per the Shafi and Maliki rules, women are entitled to their fixed shares and do not inherit the remainder, even if there is no individual to inherit it.
The rules for Sunnis provide that if the amount of share to be given to the sharers exceeds the total estate of the deceased, the shares of certain sharers would be reduced. However, in case the amount to be distributed is less than the total estate and there are no residuaries or distant kindred, the treatment is different for different schools, some stating it to be given to the treasurer and other providing for giving the remainder back to the sharers.
Rules of Inheritance for Shias
Under the Shia sect of Muslims, the heirs are divided into the following two groups:-
- Blood relations or heirs by consanguinity. These heirs cover parents, children and other lineal descendants how low so ever; grandparents how high so ever; brothers, sisters and their descendants how low so ever and paternal and maternal uncles and aunts of the deceased and of his parents and grandparents how high so ever and their descendants how low so ever; and
- Heirs by marriage.
The distribution is decided on the basis of exclusion with the general principle that the nearer relation excludes the distant relations. There is no category of ‘distant kindred’ under the Shia Law. The actual inheritance will vary on the basis of the presence or absence of other heirs.