[Link] in detail the Islamic Law on Inheritance.
Analyze the same on the basis of various
rules applicable under the law concerned. 12
Answer:
Introduction:
In Islamic Law, inheritance is considered "the science of farai'd" (obligatory duties). Unlike many
other legal systems, Islamic law does not recognize the "right of primogeniture" (where the
eldest son inherits all). Instead, it provides a precise, pre-determined mathematical formula for
distribution, ensuring that a wide range of family members receive a share of the deceased's
estate.
Statutory Recognition & Definition:
In India, Islamic inheritance is governed by the Muslim Personal Law (Shariat) Application Act,
1937.
1. Section 2 of the Shariat Act: Mandates that in all questions regarding intestate
succession (inheritance where no will exists), the rule of decision shall be the Muslim
Personal Law.
2. Definition of Heritable Property: This includes all property, whether movable or
immovable, ancestral or self-acquired, owned by the deceased at the time of death after
fulfilling certain obligations.
[Link] "Net Estate": Inheritance only begins after the following are paid:
a. Funeral expenses.
b. Expenses of obtaining probate/letters of administration.
c. Wages due for services rendered to the deceased.
d. Debts of the deceased.
e. Valid bequests (limited to 1/3rd of the remaining estate).
Detailed Provisions of Islamic Inheritance:
Islamic law is based on the principle that "The closer in degree excludes the more remote."
Key Characteristics
1. No Distinction between Real and Personal Property: All property is treated the same.
2. No Birthright: A person only becomes an "heir" upon the death of the owner. There is no
concept of "joint family property" as seen in Hindu Law.
3. Vesting of Inheritance: The title to the property vests in the heirs immediately upon
death.
The Classes of Heirs (Hanafi Law):
Under Sunnite Law, heirs are divided into three primary classes:
a. Sharers (Zaw-ul-Furud): Those entitled to a prescribed share (e.g., Husband, Wife,
Daughter, Father, Mother). There are 12 such sharers.
b. Residuaries (Asaba): Those who take no fixed share but inherit the "residue" left after
the Sharers have been paid.
c. Distant Kindred (Zaw-ul-Arham): All other blood relations who are neither Sharers nor
Residuaries. They only inherit if there are no Sharers or Residuaries.
Analysis of Rules of Distribution:
Rule 1: Rule of Double Share for Males
A general rule in the Quran is that where a male and female of equal degree (e.g., a son and a
daughter) inherit together, the male takes double the share of the female.
a. Illustration: If a deceased leaves one son and one daughter, the residue is divided into 3
parts: the son gets 2/3 and the daughter gets 1/3.
Rule 2: The Principle of Representation (Exclusion)
Sunnite law does not recognize the principle of representation. If a person dies, their children do
not "represent" them to inherit from their grandparents if the grandparent is still alive.
b. Illustration: A has two sons, B and C. B dies during A's lifetime, leaving a son D. When
A dies, C (the living son) inherits the entire estate, and D (the grandson) gets nothing
because a nearer heir (C) excludes a remoter heir (D).
Rule 3: Rule of "Aul" (Increase)
When the sum total of the shares allotted to the Sharers exceeds the unity (1), the share of
each Sharer is proportionately reduced.
Rule 4: Rule of "Radd" (Return)
If there are Sharers but no Residuaries, and the sum of shares is less than 1, the surplus
"returns" to the Sharers in proportion to their shares (except the Husband and Wife).
Impediments to Inheritance:
There are certain circumstances where an heir is disqualified from inheriting:
1. Homicide: A person who causes the death of the deceased (whether intentionally or by
accident) cannot inherit from them.
2. Difference of Religion: Under strict Shariat, a non-Muslim cannot inherit from a Muslim.
However, in India, the Caste Disabilities Removal Act, 1850 protects the rights of an heir
who has renounced their religion (converts).
3. Slavery: No longer applicable in modern law.
Case Law Summary:
Maina Bibi v. Chaudhri Vakil Ahmad (1925):
This case dealt with the widow's right to dower (Mahr) and her right to retain possession of her
husband's estate.
The court held that while a widow is a legal heir, if her dower remains unpaid, she has a
right to retain the property until the debt is satisfied, though she does not become the
absolute owner of the entire property through this possession.
Shekhawat Ali v. State of Rajasthan:
Discussed the vesting of property.
Reiteration that in Muslim Law, there is no "joint tenancy"; every heir becomes a
"tenant-in-common" with a specific, individual share.
Conclusion:
The Islamic Law of Inheritance is a highly scientific and rigid system that minimizes litigation by
providing fixed shares. While it is often criticized for the "Double Share for Males" rule,
proponents argue this is balanced by the fact that under Islamic law, men are legally obligated
to provide for the financial maintenance of women, whereas women have no such reciprocal
obligation. It remains a unique system that prioritizes blood relations and ensures the estate is
fragmented among various family members rather than concentrated in a single hand.