Introduction to Inheritance law of Muslim Law in India

Question: What are the principles of succession under Muslim law, particularly regarding the rights of women and the concept of heritable property?

Answer:

Introduction:

Muslim law of inheritance is structured around the principle of consanguinity, providing a single scheme of succession irrespective of the sex of the intestate. This framework ensures that both male and female heirs have defined rights and privileges over inherited property. This section delves into the specifics of these principles, focusing on the rights of women, heritable property, and the absence of the right by birth.

Single Scheme of Succession:

Under Muslim law, succession is based primarily on blood relations (consanguinity), and marital relations do not influence inheritance rights. A woman, whether a daughter, sister, or mother, acquires an absolute right to any property she inherits, with full powers of alienation. Her inheritance rights and control over property remain intact even after marriage, and her identity is maintained independently of her husband or parents. This means that her heirs are her blood relations, not those of her husband. For instance, if a woman inherits property from her husband and dies without children, her parents, rather than her husband’s heirs, would inherit her property.

Heritable Property:

Muslim law imposes restrictions on the bequeathal of property. A Muslim cannot bequeath more than one-third of their estate without the consent of their heirs. Consequently, even if a Will is made, two-thirds of the estate will generally pass by intestate succession unless the heirs consent to the excess bequest. If no Will is made, the entire property is distributed according to intestate succession rules.

Before distributing the estate, certain expenses and liabilities must be settled, including funeral expenses, unpaid debts, unpaid dower to the widow, incidental expenses, and costs for obtaining letters of administration. These deductions are made from the estate before distribution among the heirs. There is no distinction between movable and immovable property or separate and ancestral property in the inheritance rules.

No Recognition of Right by Birth:

Muslim law does not recognize the concept of ancestral or coparcenary property, nor does it grant any right by birth in the father’s property to the son during the father’s lifetime. The father retains full powers of alienation over his property during his life, meaning he can gift or sell it as he wishes. The son only has a hope or chance (spes successionis) to inherit the property, contingent upon surviving the father and the availability of property at the father’s death. If the father disposes of the property, nothing remains for the son to inherit.

For instance, if a father gifts his property during his lifetime, the son cannot challenge the gift on the grounds of being the future owner. The son’s rights only become vested upon the father’s death, allowing him to challenge the validity of the gift if necessary.

Conclusion:

The principles of succession under Muslim law emphasize consanguinity and equitable distribution among blood relations, ensuring that women have absolute rights over their inherited property. The framework does not recognize ancestral property or the right by birth, granting full control of property to the owner during their lifetime. This system ensures clarity and fairness in the distribution of heritable property, reinforcing the importance of blood relations over marital connections in inheritance matters.

Question: What are the principles regarding the renunciation of the right to succeed, the transfer of spes successionis, vested interests upon inheritance, and succession under the Special Marriage Act, 1954, under Muslim law?

Answer:

Introduction:

The principles of succession under Muslim law emphasize the prohibition of transferring or renouncing the mere chance of inheritance (spes successionis), the immediate vesting of interest upon inheritance, and the specific rules applicable when marriages are performed or registered under the Special Marriage Act, 1954. This section elucidates these aspects in detail.

Renunciation of Right to Succeed or Transfer of Spes Successionis:

Under Muslim law, a mere chance of inheritance, known as spes successionis, cannot be transferred or renounced. Although Chapter II of the Transfer of Property Act, 1882, which prohibits the transfer of spes successionis, does not apply to Muslims, the effect of Muslim law itself expressly prohibits it. The prospective right of an heir apparent cannot be subject to a valid transfer. However, if an expectant heir receives consideration and misleads the owner, they can be debarred from claiming inheritance when succession opens.

Illustration:

In the case of Ghulam Abas v. Haji Kayyum Ali, a Muslim man had a wife, five sons, and two daughters. During his lifetime, he incurred debts that could have exhausted his estate. Three of his financially comfortable sons paid off his debts. In return, the other two sons relinquished their inheritance claims. The Supreme Court held that the relinquishing sons, having received consideration and misled the owner, could not later claim their inheritance rights.

Vested Interest Upon Inheritance:

The heirs gain a vested interest in the intestate’s estate the moment succession opens, and their ownership is not dependent on the actual distribution of the property. Upon the intestate’s death, each competent heir’s share is vested in them. If an heir dies before the property is physically divided, their share passes to their legal representatives, not to other heirs.

Illustration:

A Muslim man, A, has two sons, S1 and S2. A dies, leaving behind a house and some other property. Both sons are married with families. Before the property is divided, S1 dies. S1’s share, fixed at half, will pass to his widow and son, not to the surviving brother, S2.

Succession Where Marriage is Under the Special Marriage Act, 1954:

If a Muslim gets married under the Special Marriage Act, 1954, or registers their marriage under this Act, the Muslim law of inheritance does not apply. Instead, the Indian Succession Act, 1925 governs the succession to their property. This rule applies irrespective of whether the spouse is Muslim or non-Muslim. The Special Marriage Act, 1954, supersedes the earlier Special Marriage Act, 1872, retaining the identical provision that the inheritance laws applicable under Muslim law will not govern such marriages.

Conclusion:

The principles under Muslim law ensure the protection of inheritance rights by prohibiting the transfer or renunciation of the mere chance of inheritance (spes successionis) and establishing the immediate vesting of interest upon inheritance. Additionally, the rules adapt when marriages are conducted or registered under the Special Marriage Act, 1954, ensuring that inheritance is governed by the Indian Succession Act, 1925, rather than Muslim law. These provisions ensure clarity and fairness in the distribution and management of heritable property among heirs.

Question: What are the disqualifications for inheritance under Muslim law, and how do these rules affect individuals based on religion, homicide, and the legitimacy of children?

Answer:

Introduction:

Under Muslim law, certain individuals who would otherwise be eligible to inherit may be disqualified based on specific grounds. These disqualifications include differences in religion, acts of homicide, and issues related to the legitimacy of children. This section outlines the rules governing these exclusions and their implications.

Disqualifications:

1. Difference of Religion: One fundamental principle of inheritance in Muslim law is that only Muslims can inherit from Muslims. A non-Muslim cannot inherit from a Muslim intestate. However, this strict rule was modified by the Caste Disabilities Removal Act, 1850, which protected the inheritance rights of converts. For example, if a Muslim man has a son who converts to Christianity, this convert son would still be entitled to inherit his father’s property due to the Act. Conversely, if a Hindu married man converts to Islam and then dies, his Hindu son cannot inherit his property under Muslim law.
2. Homicide: A person who causes the death of another is disqualified from inheriting the deceased’s property, whether through intestate or testamentary succession. Under Sunni law, this rule applies strictly regardless of whether the death was intentional or accidental. In contrast, Shia law disqualifies only those who intentionally cause death.
3. Illegitimate Child: Legitimacy in Muslim law is linked to the lawful wedlock of the parents. A child born within six months of marriage is presumed legitimate unless the father disclaims paternity through ‘lian’ (accusation of adultery). A legitimate child has inheritance rights, while an illegitimate child does not. The legitimacy can be established through direct or indirect proof of marriage, presumption, or acknowledgment by the father. However, acknowledgment cannot legitimize a child born from a union where the parents could not have legally married, such as cases of adultery or prohibited degrees of relationship.

Illustrations and Details:

Convert’s Inheritance Rights:

• If a Muslim man has a son who converts to Christianity, under classical Muslim law, this convert son would not inherit. However, the Caste Disabilities Removal Act, 1850, protects his inheritance rights.
• If a Hindu man converts to Islam, his Hindu son cannot inherit his property under Muslim law because the son is a non-Muslim.

Homicide:

• In Sunni law, a person who accidentally or intentionally kills another is disqualified from inheriting the deceased’s property.
• In Shia law, only those who intentionally cause death are disqualified.

Legitimacy of Children:

• A child born after six months of marriage is presumed legitimate unless the father disclaims paternity. If born within six months, legitimacy can be acknowledged by the father.
• Shia law considers a child legitimate if born within ten lunar months after marriage dissolution; Hanafi law within two years; and Shafe’i and Maliki law within four lunar years.

Conclusion:

The rules of disqualification under Muslim law ensure that inheritance rights are governed by principles of religion, moral conduct, and legitimacy. Differences in religion, acts of homicide, and the legitimacy of children significantly affect an individual’s eligibility to inherit. These principles maintain the integrity and ethical considerations within the framework of Muslim inheritance law.

Question:

What are the rules regarding the legitimacy of a child under the Indian Evidence Act, 1872, and how do these compare with Muslim law? Additionally, what are the inheritance rights of illegitimate children and the conditions under which daughters may be excluded from inheritance?

Introduction:

The legitimacy of a child and their inheritance rights are governed by different rules under the Indian Evidence Act, 1872, and Muslim law. Understanding these rules is crucial for determining the child’s status and inheritance rights. This section explores these rules and their implications for legitimate and illegitimate children, as well as the conditions under which daughters may be excluded from inheritance.

Legitimacy of a Child under the Indian Evidence Act, 1872:

Section 112 of the Indian Evidence Act, 1872, stipulates: “The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the son of that man unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

Under this Act, the time of the birth of the child, rather than the time of conception, determines its legitimacy. The only way for a husband to disclaim paternity is by proving that he had no access to his wife during the possible time of conception.

Comparison between the Rule under Indian Evidence Act, 1872, and Muslim Law:

There are three fundamental differences between the rules under the Indian Evidence Act, 1872, and those under Muslim law:

1. Timing of Birth and Marriage:

• Under Muslim law, a child must be born after six months of marriage to be considered legitimate.
• According to the Evidence Act, a child born soon after the marriage is legitimate, with paternity fixed on the husband, unless the husband proves non-access.

2. Birth After Dissolution of Marriage:

• The Evidence Act requires that for a child to be legitimate, it must be born within 280 days after the dissolution of marriage, and the mother must remain unmarried.
• Under Muslim law, the time periods vary: ten months under Shia law, two years under Hanafi law, and four years under Maliki and Shafe’i law.

3. Allegation of Adultery:

• Under the Evidence Act, an allegation of adultery is not enough to disclaim paternity; the husband must prove non-access.
• Under Muslim law, a father can disclaim paternity by ‘lian’ (accusation of adultery), which is sufficient.

Inheritance Rights of Illegitimate Children:

Sunni Law:

• An illegitimate child is related to its mother and inherits from her and her relatives but not from the father or his relatives.

Shia Law:

• An illegitimate child does not inherit from either parent or their relatives.

Exclusion of Daughter:

While under both Sunni and Shia Muslim law, a daughter is entitled to inherit from her parents, certain customs and statutes can exclude her from inheritance. These exclusions, although contrary to Quranic principles, are valid.

• In Jammu and Kashmir, a daughter may inherit only in the absence of all male agnates of the deceased or if she is a ‘Khananashin’.
• Daughters are excluded from inheriting watan land under the Watan Act, 1886 (Bombay).
• The Oudh Estates Act, 1869, which follows primogeniture for taluqdari properties, also excludes daughters and their heirs.

Conclusion:

The legitimacy of a child and their inheritance rights under the Indian Evidence Act, 1872, and Muslim law show notable differences, particularly concerning the timing of birth and the father’s ability to disclaim paternity.

While legitimate children have clear inheritance rights, illegitimate children’s rights vary between Sunni and Shia law. Additionally, daughters’ inheritance rights can be restricted by specific customs and statutes, impacting their ability to inherit property.

Understanding these distinctions is crucial for applying the correct legal principles in cases of inheritance.