ISLAMIC LAW OF SUCCESSION (By: Danish Chandra)

ISLAMIC LAW OF SUCCESSION

Authored By: Danish Chandra

Abstract

This research paper provides complete knowledge about the Islamic Law of Succession, the word succession means that the actions or the process of inheriting property, title or charge accomplished one after the other. In the term of the law the succession means distribution of the estate of a deceased as per the succession law and how the property has to be distributed upon the death of the state owner. Under Muslim Law in all the properties which are devolved by the succession, the right of the heir-apparent does not come into the existence till the death of the ancestors. The Islamic law of succession opens on the death of the ancestors only and after that alone the property vests in the heirs.

Introduction

As per Llm-ul-faraiz, the Islamic Inheritance Law (most important branch of Shariah) the Islamic Law of Succession has always been admired for its completeness and as well as the success which has been achieved by the ambitious scheme for not providing merely selections of the single and individuals or even the homogeneous groups of the individuals also on whom the estate should deceased and devolve by the universal succession but also for the adjusting the competitive claims of all the nearest relation. Even to the excellence of the system in the formal sense as we know that Sir William Jones has observed that firmly willing to believe that no question can arise about Muslim inheritance law that cannot be resolved quickly and properly. There has been a tribute paid to the system by the Rumsey which is not less than exalted and he have also observed that the ‘’ The Mohammedan Law of inheritance which is comprises beyond the question and very refined and elaborate system of rules for the devolution of property which is known to civilians.

The succession also means that the transfer of the properties of an Ancestors and even after their death to the rightful heir.

The role of succession in Muslim law has been derived from the customary law of the succession and it is also based on the Patriarchal family systems therefore the word Patriarchal means the legal dependence. While transferring the property the both son and daughter have the equal rights to hold and to dispose the transferred the property even after holding the transferred property then also, they can do whatever they wish to do with that property which meant like they can mortgage it, lease it or even bequeath the property also thus, they become the owner of that particular property after it is transferred to them.

Under the Islamic law of Succession, it has the combination of the four sources which are-

1. The Holy Quran

1. Sunnas are known as worshipers of the Prophet.

1. Ijma the consensus of the learnt in which men of the community or even over the decision and over the particular subject matter.
2. Qiya means the deduction which is based on the analogy on which the right and just is in the accordance with the good principles.

As we know that Islamic Law is recognized by the two types of the heirs, which are Sharers and Residuaries. The Sharers are known as the one who are entitled to the certain share in the deceased of the property and the Residuaries are those who take up the share in the property which is left over after the sharers which have taken in their part.

Islamic Principles Of Succession

The Prophet interposed the following new principles over the above principles for many customary laws of inheritance. Firstly, the husband and the wife will be having equal and they will be entitled to inherit to each other. Secondly some of the near females and the cognates will also be recognized and they will be enumerated as the heirs. Third, parents and some other ancestors become heirs even from where the descendants are. Fourthly there are newly created heirs those who were not entitled to inherit under the customary law which are given by the specified shares.

Fifthly there are the newly created heirs who inherit from the specified shares along with the customary heirs and they are not to their exclusions allotting to the specified shares to the newly created heirs who were called as the sharers whoever is left and all the scheme is so laid down to that and which was something which is usually left and goes to the customary heirs who are called as the residuaries.

(Quranic Heirs) Sharers

The Quranic Heirs are known as the Sharers and they are those persons who are always entitled to the certain shares in the deceased of the property. They share is always taken by each of the sharer which will vary in the certain conditions For, instance the wife takes the 1/4th part of the share in the case where the couple which is without the lineal descendants and which is one-eighth share and otherwise. The husband in the case of the succession to the wife’s estate which takes a half of the share in the case in which the daughter takes place a half of the share and even where the deceased has left behind more of than one daughter with all the daughters of the jointly takes the two thirds.

And if the deceased had left behind his son’s and daughter’s even then the daughters are ceases to be sharers and can become the residuaries instead of the residue which being so distributed as it to ensure that each of the sons gets the double of what each of the daughter gets.

There are 12 shareholders who are defined by Islamic inheritance law-

• Father, Mother
• Husband, Wife
• Daughter, Son’s Daughter
• Full sister, Consanguine Sister, Uterine Sister, Uterine Brother
• Maternal Grandmother, Paternal Grandmother.

FATHER- As father becomes the sharer when the deceased left his child or the son’s or the grandson’s child and otherwise, he is not to sharer.

MOTHER- For the mother there is three different conditions-

There is 1/3rd of the share if there are no child or the child’s son and even no brother or the sister to the deceased.

There is 1/3rd of the remaining share even after the deduction of the share of the deceased to the partner when there is the Father or the Partner of the deceased only.

There is no share where there is the child or the son’s child and even if there are the 2 or more of the brother’s or the sister’s or even 1 brother and 1 sister.

HUSBAND- In this if the man of the death wife is surviving then all the property is

transferred to the husband, and if the couple has the child or the child’s son then the husband has the 1/4th share of the property and if the couple has no child or the child’s son then he has the 1/2th share of the property transfer.

WIFE- In this if the husband dies then the wife is entitled to and with the husband property. But there are some of the conditions like if they have no child or grandson then 1⁄4 of the property is entitled even if they have the child and then the wife is entitled to the 1/8th of the property.

DAUGHTER- This is only in absence of the son daughter which are heirs, and if there are single daughter which receives 1⁄2 of the share and if there are more than one daughter then all of the them are the inherit of the 2/3 of the equal share.

SON’S DAUGHTER- In this the son’s daughter becomes the sharer only when she has predeceased the son of the deceased and also that son has not left with any son of his own.

FULL SISTER- In this the single full sister receive all the 1⁄2 of the share and if there is no son, father, grandfather, daughter, son’s daughter or the brother, and if there are 2 or more full of the sister’s and no excluded then the sister gets the 2/3 shares.

CONSANGUINE SISTER- In this when there are no full sister and no excluder then the consanguine sister then it’s entitles to receive the 1⁄2 shares.

UTERINE BROTHER AND SISTER- In this if there is no child or son’s child, no father and grade father which are alive then only the uterine sister and the brother which are entitled to become the heirs and then they share that to the brother and sister to 1⁄2 of it and it is divided into equally in all by the share of the 2/3.

MATERNAL GRANDMOTHER- This is used when the mother of the deceased is dead and then the maternal grandmother is entitled to the inherit of the share.

PATERNAL GRANDMOTHER- This is used when both the parents are deceased which are dead then only the paternal grandmother will become the sharer.

(Agnatic Heirs) Residuarues

The Residuarues is known as the agnatic heirs it used after dividing the heritable estate which is between the sharers and then Agnatic heirs the chance which arises, the Residuaries are those who would be taking up for the share in the property and after that it is left over after the sharers which have been taken up their parts. The residuariers which are through male only and it is counted.

According to the Sharee’ ah (Islamic Law) as a widow which is indeed to the entitled to share of the inheritance from the property which is belonged to her and to the deceased husband.

The wife’s share is 1⁄4 of her husband which leaves no child and if he leaves the child and she gets an eighth and as the Allah has said in the Holy Quran.

The Islamic law of Succession is the absence under the will and therefore the non- testamentary succession which is governed by the Muslim Personal Law (Shariat) Application Act, 1937. And on the other hand, in the case of the testamentary succession when the deceased which has made by the will the Shariat law of the Muslim which is applied for the inheritance of the property and of the deceased which is generally practiced by the Shia and Sunni Muslims.

Thus, according to the Hanafi law which is in the absence of Sharers and the Residuaries even the ownership passed to the other parents who are "Distant Kindred and The State by Escheat" and the Far relatives are the third category of heirs who are related by blood or consanguinity (zavilarham). It also included all relatives of the deceased except those included in the co-participant category, are hereditary in the property of the deceased only in the absence of associates and residues.

Birthright

Succession of the property in the Islamic law always comes only after the death of the person with any of the child is born in an Islamic family or does not obtain the right of ownership at birth and if the heirs of the lives even after the death of the ancestor and when he becomes the legal heir and it is therefore not entitled to the shares in the property even if the apparent it survives in its ancestor, so there is no right to inherit or shares of the property it will be exist.

Distribution Of The Property

In Islamic law, distribution of property can also take place in two ways, namely per capita distribution or band distribution. As the per capita distribution in this the method is majorly used in the Sunni law and according to this, the method provides for the heritage left by the ancestors,

which is equitably distributed among the, and therefore the share of each of the person shall depends on the number of the heirs. The per strip distribution method which is recognised by or in the Shia Law and according to this method the property of the inheritance and the property which gets distributed among the heirs and also according to the strips they arebelongs to it.

Thus, the quantum of their inheritance which is also depends upon the branch and that number of that persons belongs to that particular branch.

Rights To The Female

As in the Islamic religion they do not create any of the distinction between the rights of the men and women and on the death of their ancestors even nothing can prevent in both the women and the male child to become and the legal managers of the hereditary property.

Thus, it is generally founded that the quantum of the share of the female and heirs which is half of that or of the male heirs. The particular reasons which are behind any of this is the under the Muslim law and in the female which shall upon on the marriage or receive mehr and the maintenance from or her husband and whereas the males will only have the property of the ancestors for the inheritance and it also helps males which have the duty of maintaining their wife and the children.

Widow’s Right To The Succession

In the Islamic Law there is no widow who is excluded from the succession and as the childless Islamic widow which is entitled to one-fourth of the property which is deceased husband after the meeting of his funeral and the legal expenses and debts. Therefore, the widow who has children or grandchildren is entitled to 1/8 of the deceased's estate of her husband. If the Islamic merry during his illness and subsequently dies of that the medical conditions which is without the brief recovery

or the consummating the marriage and his widow who has no rights of the inheritance even if her ailing husband tries to discover her and here afterward that he dies from that illness and that widow’s right to the share of the inheritance which continues until she remarries.

A Child In The Womb

As the child in the womb of its mother is also the competent to the inherit to provide when he is born alive. When the child is in the embryo then it is regarded as the living person and even the property vests is immediately in the child and if such a child is in the womb which is not alive then the share is already conferred on his assignee and it is assumed that there was never or no heir in the womb.

Illegitimate Children

According to the Hanafi law the illegitimate child is never entitled to inherit from his father. Thus, it is allowed to inherit from its mother. The mother can also inherit the property of her illegitimate children. The illegitimate child cannot inherit not merely from the property of its mother but also the property of all the other relations with whom it is related to through the mother but also the property of all the relatives with whom it is related through the mother. Therefore, when the Hanafi female dies leaving behind her husband and an illegitimate son of her sister then the husband will take the 1⁄2 as the sharer and it will residue which will go to her sister’s son. As the illegitimate child cannot inherit from its father which cannot from any other relation through the father under the Ithana Ashari School there are the illegitimate child which is treated as the nullius filius and which cannot inherit the property any of its property from any of his parents or any other person through its parents.

The State By The Escheat

When a deceased Muslim has the no longer heir under the Islamic Law and his properties are inherited by the government through the process of the escheat which comes under the special marriage act,1954. Where the Muslim has the contract of his marriage under the Special Marriage Act,1954 when he ceases to be the Muslim for the purposes of the inheritance and accordingly after the death of such as the Muslim his or her properties does not devolve under the Islamic law of

Succession the succession of the properties of such the Muslims are governed by the provisions of the Indian Succession Act,1925 and even in the Muslim law of Inheritance in which it is not

applicable.

Case Laws Related To The Topic

In Rukmani Bai v. Bismilla Bia, it was estimated that when the person dies leaving the daughter unmarried and no residue should be entitled to her and even to share as well as the residuary share in the property of the deceased.

In the case of Abdul Matin Vs. Abdul Azeez Gau AIR 1990 in the case it is considered that where there is one of the two sisters who inherited their father’s property who dies leaving

behind his only son and the other who died later has survived only by her husband which has the 1⁄2 latter of the property which was allotted to her husband and the other 1⁄2 of his sister’s son as the Uterine Heirs.

Conclusion

As it said in the Holy Quran that Allah has always purchased everything from his believers and their persons and their wealth in the lieu of Jannah. Therefore, man is the custodian of his wealth which he possesses for the duration of his life, the term of his life ends, then his trust still has his wealth and possessions.

Bibliography

Statue-

• Bare Act, New Legislation on Hindu Law Reference-
• www.legalbites.in
• https://blog.ipleaders.in Books-
• Dr. Paras Diwan’s Family law
• Dr. Paras Diwan’s Modern Hindu Law Case Laws-
• Rukmani Bai v. Bismilla Bia
• Abdul Matin Vs. Abdul Azeez Gau AIR 1990