Abdul Khadar vs Land Tribunal on 31 October, 1985
Under the Personal Law of Muslims, a son does not get any right to the property during his
father's life time:
"In Muslim law, so long as a person is alive he or she is the absolute owner of his or her
property ; nobody else (including a son) has any right, whatsoever in it. It is only when the
owner dies and never before that the legal rights of the heirs accrue. There is, therefore, no
question of a would-be heir dealing in any way with his future right to inherit.
The Indian legal concepts of 'joint' or 'undivided' family, 'coparcenary', 'Karta', 'survivorship',
'partition', etc., have no place in the law of Islam. A father and his son living together do not
constitute a 'joint family' ; the father is the master of his property ; the son (even if a minor)
of his, if he has any. The same is the position of brothers or others living together.”
Maimoon Bivi v Khajee Mohideen, AIR 1970 Mad. 200 [LNIND 1969 MAD 57]: 1969-
82-LW 632; Mohammed Ibrahim v Syed Muhammad Abbubakker, AIR 1976 Mad. 84
[LNIND 1975 MAD 418]: (1976) 2 Mad LJ 478.
There is no provision of Mahomedan Law recognising a joint family. In Andhra Pradesh
Muslim families live together and do business together. Such business may be carried on for
the benefit of the family including minors and females. Such arrangements have been upheld
by Courts. In such a case the adult member or members stand in a fiduciary capacity and the
Trust Act is applicable. When the co-owner dies his heirs take his place.
Intestate succession (Mulla Principles of Mahomedan Law)
Customs altering the Mahomedan law of intestate succession seem to be the chief grievance
which the Act is designed to redress. The general rule of customary law is agnatic succession
which excludes all females except a widow and daughter and these are allowed only a life
interest or merely bare maintenance. This custom has the added inconvenience of being
subject to many exceptions. The custom of agnatic succession among Muslims prevails
chiefly in Northern India, but in Western India the Act will abolish the customary law of
succession according to Hindu law for Khojas, Cutchi Memons, Halai Memons and Sunni
Bohras and Molasalam Girasias. In the case succession to a tarwad in Malabar, where the
deceased belonged to a joint family which followed the custom of Hindu law in spite of being
Muslims, it was held that if the custom was established, there would be no property left by
the deceased which could devolve as on intestate succession and there would be no scope for
the application of the Shariat Act; but if there is a property which could be the subject of
intestate succession then any custom in derogation of the rules of Muslim Shariat Law, such
as a custom which merely excludes females from inheritance and succession cannot be
pleaded. In Southern India it will abolish the law of succession of Moplas, many of whom
follow the Marumakhatayam law of matriarchal succession. On the other hand as the Act
does not by implication repeal any Act not specified in s. 6, it will not affect the rule of
succession by primogeniture enacted for some talukdari and zemindari estates. Nor will the
Act affect the custom of succession to the office of Mutawalli of a wakf or Sajjadanishin of a
khanka, for charitable and religious institutions are excluded from its scope, nor will it affect
the operation of the provisions of s. 488 of the Code of Criminal Procedure with regard to
maintenance.
Representation of deceased's estate (Mulla Principles of Mahomedan Law)
The theory of representation is not known to the Mahomedan law. Under its provisions, the
estate of a deceased person devolves upon his heirs at the moment of his death. The estate
vests immediately in each heir in proportion to the share ordained by Mahomedan law. As the
interest of each heir is separate and distinct, one of a number of heirs cannot be treated as
representing the others.