A “WILL” COVERS the distribution of your assets upon your death. Therefore “Will” reflects your wish in distribution of your property after your demise. Your money, your choice. You have every right to distribute it. But in doing so, is not always possible or if being a Muslim, if your desire to know who are the Quranic Shears as per Islamic jurisprudence, hope this article will help you.
I N T R O D U C T I O N
Inheritance Law can be a complex affair. No exception to the Muslim Law of Inheritance. Thus the whole object of this article is to present the subject in a lucid manner. Moreover it may not sound like a legal piece. On contrary, hope it would become relatively easy to master these systems.
Inheritance is the entry of the living into the possession of the deceased’s property.
The two main schools of Muslim law are Hanafi or Sunni and Shia and these laws of inheritance are different in their foundational structure as well as detailed implications, though the both are inspired from the Quranic verses of inheritance. However, All the Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937. This law sanctioned their Muslim traditional marriage, succession, inheritance and charities.
As per “KITAB AL-FARA’ID” Muslim inheritance has certain objects-
• To break up the concentration of wealth in individuals and spread it out in society.
• To respect the property right of ownership of an individual earned through honest means.
• To hammer in the consciousness of man the fact that man is not the absolute master of wealth he produces but he is its trustee and is not,therefore, authorised to pass it on to others as he likes.
• To consolidate the family system which is the social unit of an Islamic society.
• To give incentive to work and encourage economic activity as sanctioned by Islam.
SOME GENERAL RULE OF INHERETANCE.
• Every person is entitled to inherit unless there is something to exclude him. This exclusion are of two types – a>Imperfect Exclusion or Pertial Exclusion
a> exclusion from one share and admissions to another or pertial reduction due to the presence of certain heirs.For example daughter in the presence of a Son is excluded as a ‘Sharer’ and becomes Residuary.
b> total Exclusion is due to some legal cause. For example –
full blood excludes half blood.
Nearer in degree excludes distended relatives.
• A child in womb is regarded as a living person provides he is born.
• There is no distinction in Muslim Law of Inheritance between ancestral and self acquired property.
• The principle ” nearer in degree excludes more remote” is applied in Muslim Law of Inheritance.
• The principle of ” A living person has no heir” strictly applies to Muslim. Son does not have any right over his ancestral home when his father is alive. Son entitled to property on his father’s death.
• Principal of Muslim Law does not recognise ” right by representation”. It follows per capita concept.
[“Per stirpes” or “by right of representation” – Per Stirpes is Latin Word that means “by roots”. It is also called “by representation. “according to the stocks or roots”.
Under this system each branch of the family receives an equal share of the inheritance. If one of the branches dies while dividing the inheritance, his/ her portion is passed on to his/ her descendants. An equal share is created for the three predecessor children. The point is, no death of father or mother prevents a child from inheriting.
“Per capita” (also known as “per capita at each generation” or “share and share alike”) means “by the heads”. In dividing the inheritance per capita, an equal share is given to all living persons who stand in same class.
In this division of property in this manner is divided into the following:(A) among the closest surviving descendants of the deceased and (b) among the living descendants of the same generation. Each surviving descendant of the nearest generation is allotted a share and the remaining shares, if any, are collected and then equally divided among the surviving descendants of the deceased.]
• Sunni succession law recognizes relatives as heirs who have a relationship with the deceased through a male. These include the son’s daughter, the son’s son and the father’s mother. But the daughter’s son will not inherit it. It’s not applicable in Shia Law.
• there cannot be a transfer of spes successioni in Muslim Law. [ Spes is the goddess of hope and Spes Succession means chance of Succession.]
• The Muslim Law does not recognised a Joint family as a legal entity. Because Muslim Law has no concept of Joint family business.
• Muslim Law of Inheritance does not any right of “primogeniture” ( elder son)
• Slave does not have any right of Inheritance.
• Illegimate child has no right over his father’s property.
• But legitimate children will not be deprived under any circumstances unless they convert to another religion or they kill their father.
• If any heirs is missing, then his share will be reserved untill his death is proved.
• Sunni law of Inheritance was distinguishing paternal and maternal grandfathers into true and false grandfathers
• As per “KITAB AL-FARA’ID”, one living in Dar-ul-Harb cannot inherit the property of one living in Dar-ul-Islam and vice versa.
• As per “KITAB AL-FARA’ID”,a fugitive slave who has fled away from his master, will be barred for inheritance.
The main source of Muslim law is Qur’an and so no exception for inheritance law also. In this context of inheritance Quran provides eight verses. The remaining additions are introduced by Sunnah, Ijma and Qiyas.
When an estate of a Muslim deceased is distributed , certain facts must be necessitated before the inheritance of the property. Before the distribution of the property of the deceased, his heirs must fulfill their responsibilities. Responsibilities are-
• To pay the funeral expenses.
• To repay the debt of the deceased.
• To execute Will if it exists.
• To pay the maher (entitlement) to the widows of the deceased.
[Maher is the total money or property that a wife is entitled get from her husband at the time of marriage. There are two types of maher: prompt and deferred. In the former case, the amount is given to the wife immediately after marriage; in the latter, the amount is given to the wife when her marriage has ended, either upon the death of her husband or by divorce.]
■ Sunni Law of Inheritance Classes-
If a Sunni Muslim dies, his property will be divided among his own people. The muslim law makes no distinction between movable property for the purposes of inheritance. The only difference recognized by Shia law is that a childless widow is not entitled to a share in her husband’s land. But this land does not include buildings or trees, she will share the value of building.
But more close ones deprive distant relatives. Grandpa won’t get it where Father survives.
Here the people who share in the property of the deceased are called heirs.
■ Three classes of Heirs-
There are three classes of heirs, namely
1. “Legal heirs” are those who are entitled to designated share of inheritance. Their number are 12.
2. ” Residuaries” are those who take no prescribed share, but succeed to the “residue” after the claim of the shares are satisfied. Thus this remaining are beneficiaries who will receive the property after receiving the 12 heirs.
3. ” Distant Kindred” are all those relations by blood who are neither considered as shares nor Residuary. Distant relatives receive property if the deceased has no partner or survivor.
All the legal heirs receive a fixed amount of property. Here legal heirs are of two types. Main heirs and General Heirs.
Main heirs are the closest relatives. They are namely-
These closest relatives will never be deprived of the deceased’s abandoned property.
The other 6 legal heirs are general heirs. They are
• own sisters
• half blood brother
• Half sister.
Who gets how much share from Main heirs
The property is doled out as follows.
If the deceased has no children, then deceased’s father gets the entire property. If the deceased has a son or a daughter, the father of the deceased will get one six properties.
If the deceased has children, the mother will get one-sixth of the total property. When the deceased has no children but two or more siblings are there, then also the mother will still get one-sixth.
However, if the deceased has no children and no more than one sibling, the mother will get three parts of one.
If the deceased’s father still exist and the mother gets three-thirds of the remaining property after giving her husband or wife’s share.
When children doesn’t exist Husband will get half property. But when there are children, then husband will get 1/4 share.
If there are more than one wife, it seems to be calculated as one and then the share of one wife will be divided equally among the wives.
If deceased have no children wife will get 1/4 and if children are there, wife will get 1/8 share of property.
The son’s part is not specified. However, the son will get double from the mother and sister. After giving to everyone, the boy will get what is remain.
If the deceased has a daughter and no son, he will get half of the total property. If there are more than one girl then 2/3 will get part and this part will be divided equally among all the girls. The rest of the property will go to others. If the deceased has both a son and a daughter, the son will get twice as much as the daughter.
Who gets how much share from General heirs
If the father of the deceased is alive, his grandfather will not get any share. And if there is no father, the grandfather will get one part of the father, that is, one sixth.
If the parents of the deceased are alive, it is not possible to get their mother’s share. But if the parents do not survive, one-sixth of the property will be divided equally between the father’s mother and the mother’s mother.
If the mother of the deceased is alive, mother’s will be deprived. But if the father is alive, the father’s mother will be deprived.
The son of the dead is not alive. The boy has an only daughter. Then that girl will get half of the property. If in this case the girl is more than one, then two-thirds of the two will be divided between them.
If the deceased has one daughter and the deceased’s son has one daughter, the daughter of the son will get six parts of one. And if the son of the deceased has a son and a daughter, then the son will get twice as much as the daughter.
When decesed childless sister does not have husband Her brother / siblings will inherit all the property.
If the deceased has no children, if there is no father, grandfather or brother, and if the deceased has one sister, he will get two parts of one and three parts of two if he has more than one. If the deceased has a brother, that brother will get twice as much as the sister.
Half Brother and sister
Under this heading there are two groups.
Brother from same mother=
When there is no son or grandson, no father or grandfather of the deceased, then brother from same mother will be entitled to get shares.
(A) If there is only one sibling, he will get 1/6 part,
(B) If there is more than one, then each will get 1/3 part.
Sister from same father=
If there is a male heir of the deceased, the step sister would be deprived.
• the deceased has no siblings and only one step-sister, the share will be 1/2,
• If there is more than one sistet their total share will be 2/3 share,
• If the deceased has only one sibling, the step-sister will get 1/6 share,
• If the deceased has more than one sibling, the step-sister shall be deprived,
• If the deceased has more than one sibling and if there is a half-brother with the half-sister, he shall be a partner in the same.
(A) If there is only one granddaughter, 1/2,
(B) If there is more than 2/3 share,
(C) If the deceased has only one daughter, the grandchildren will get 1/6 share,
(D) If the deceased has more than one daughter, the grandchildren will be deprived,
(E) the granddaughter and granddaughter of the deceased shall be partners if they are present at the same time,
(F) If the deceased has a son, the grandchildren will be deprived.
When it is seen during the distribution of the deceased’s abandoned property that there is no “Main heirs” or “General heirs”, then it should be distributed among his distant relatives, which is known as “Jabil Arham”. When there is no distant relatives, property will be entitled to Government.
• No Inheriting for step father or step mother, step son-daughter doe.
• If someone kills someone, the killer does not inherit his property.
• If a husband and wife get divorced while they are alive, no one will get anyone’s property.
• The illegitimate child will not receive property from his father and his father’s relatives according to the general rules (according to Muslim Hanafi law).
■ SHIA LAW OF INHERITANCE
The principle of distribution of property among Shia heirs is different from that of Sunni Muslims. In Sunni law, legal heirs are divided into three classes, i.e. the sharers, the residuaries and the distant kindred; while Shia law recognizes only two classes, i.e. the sharers and the residuaries. There is no concept of distant kindred in Shia law. The two classes are-
1. Inherited by lineage, which is blood relationship.
2. Inheritors of marital relations, i.e. husband and wife.
1. Inherited by lineage: There are three classes of inheirted by lineage. They are as follows-
(i) Parents, and
(ii) Children & their descendants how low so ever irrespective of the fact whether they are descendants of male or female children.
(i) Grandparents how high so ever, and
(ii) Brothers & sisters (full, consanguine, and uterine) & their descendants how low so ever irrespective of their gender.
(i) Paternal uncles & aunts,
(ii) Maternal uncles & aunts, &
(iii) Their children how low so ever irrespective of their gender.
First, no one will inherit from Class 2 unless the heir (or multiple) is present from Class 1:
Similarly, if there is an heir (or multiple) from Class 2, there will be nothing from Class 3.
These classes are a primary Maintains structure where Shia deceased person’s estate is distributed except for treating deceased person’s spouse differently
Here among three above mentioned classes, the first classes has the right to inherit the property. When there is no heirs from first class, then the second class heirs will get it. Then no one of the third class will get share. But if there is no first and second person then only third class people will get share.
2. Inheritors of marital relations: Husband and wife – never deprived of inheritance Husband or wife also inherits with the blood relatives of the deceased The husband gets 1/4 or 1/2 in some cases and the wife gets 1/6 or 1/4.
Policy and procedure for distribution of shares:
For the purpose of ascertaining the shares of heirs, There are an another category apart from Inherited by lineage and Inheritors of marital relations. That is Residuaries.
In the absence of a heir, his decendent will receive his portion of share and it will be applicable for Residuaries also.
In the case of class division of heirs, the distribution of property is done in accordance with the order of procedure In that
(A) If there is an heir of the first class, the next two classes are deprived
(B) The heirs of the second class deprive the third class
(C) But one part of the third class does not deprive the other class.
Finally, it is also true that a huge number of Titel Suit cases are pending in Civil Courts. The need to reduce the number may be achieved by educating people in respect of inheritance law. In the matter of Muslim Law of Inheritance can be incorporated to the madrasa textbooks and if the Muslim inheritance policy is properly adhered to, litigation over the distribution of wealth among partners in the courts will be greatly reduced. If the number of cases filed decreases, there will be no case backlog.
• KITAB AL-FARA’ID”
• Muslim Law Syed Khalid Rashid.
• Principal of Mahomedan Law MULLA
• Succession in the Muslim Family N J Coulson
• Mohammaden Law in India and Pakistan, B R Verma
• The Principles of Mohammedan Law, p. N Purohit