“Learn the laws of Succession and teach them to people, for they are one half of the useful knowledge
–Prophet Mohammed.
Meaning of Succession
The word succession means the action or the process of inheriting property, title or, office one after another. In terms of law the Succession is Defined as with regards to an estate, succession laws determine how property is to be distributed upon the death of the state owner. Under Muslim law, all properties devolve by succession, the right of heir-apparent does not come into existence till the death of the ancestors. Succession opens only on the death of the ancestors, and then alone the property vests in the heirs.
UNDER MUSLIM LAW SUCCESSION IS COMBINATION OF FOUR SOURCES
1. The Holy Quran
2. Sunna (Practice of Prophet).
3. Ijma (consensus of the learnt men of the community or over the decision over a particular subject matter).
4. Qiya (deduction based on analogy on what is right and just in accordance with good principles.
The succession means transfer of the properties of an Ancestors after their death, to the rightful heir.Thesuccession in Muslim law is derived from the customary law of succession and it is based on the Patriarchal family system. Here the word Patriarchal means the legal dependence.
In transferring of property,the daughter as well as son both have equal rights to hold and dispose the transferred property. After holding the Transferred property, they can do whatever they want to do with that property that means they can mortgage, lease, or bequeath the property i.e. They become owner of property after transferred to them.
There are two types of Heirs under Muslim Law
1. Sharers (Quarnic Heirs)
2. Residuaries (Agnatic heirs).
1.Sharers (Quranic Heirs)
They are those persons who are entitled to certain share in the deceased’s property.
There are 12 sharers defined under The Muslim law~
Father, Mother, Husband, Wife, Daughter, Son’s Daughter, Full sister, Consanguine Sister, Uterine Sister, Maternal Grandmother, Paternal Grandmother, Uterine Brother.
Father
Father becomes sharer when the deceased has left a child or son’s or grandson’s child, otherwise he is not sharer.
Mother
For mother there is three different conditions:
•1/3rd of share if there is no child or child’s son & no brother or Sister to deceased.
•1/3rd of remaining share after deduction the share of deceased partner when there is Father or Partner of deceased only.
•No share – where there is a child or son’s child, and if there are 2 or more brother or sister or 1 brother and 1 sister.
Husband
If man of death wife is surviving then the property is transferred to husband.
If couple has child or Child’s son then the husband is 1/4th share of property, but if couple has no Child or child’s son, then he is share to 1/2th of the property transfer.
Wife
If husband dies, then wife in entitled with husband property.
But there are some conditions
•If there have no child or grandson then 1/4th property is entitled.
•but If they have child then wife is entitled to 1/8th of property.
Daughter
Only in absence of son daughter are Heirs.
Single Daughter receives 1/2 share but if there are more than 1 daughter, then all of them are inherit 2/3 of share equally.
Son’s Daughter
The son’s daughter become a sharer only when she has predeceased the son of the deceased & such a son has not left with any son of his own.
Full Sister
A single full sister receive 1/2 share if there is no son, father, grandfather, daughter, son’s daughter, or brother.
When there are 2 or more full sister and no excluded, the sister will get 2/3 shares.
Consanguine Sister
When there is no full sister & no excluder, then the consanguine sister entitled to receive 1/2 share.
Uterine Brother and Sister
If there is no child or son’s child, no father and grade father alive then only uterine sister & brother are entitled to become heirs.
Then share of such brother & sister is 1/2 and it is divided equally in all by share of 2/3.
Maternal Grandmother
When the mother of the deceased is dead, then maternal grandmother is entitled to inherit of share.
Paternal Grandmother
When both the parents of deceased are dead then only paternal grandmother become sharer.
2. RESIDUARIES (Agnatic heirs)
When after dividing the heritable estate between the sharers, then Agnatic heirs chance arises. Residuaries, are those who would take up the share in the property after that is left over after the sharers have taken their parts. The residuaries are through male only, which are related to deceased. No female is included into the Resuadaries only male is counted.
According to The Sharee ‘ah (Islamic Law), a widow is indeed entitled to a share of the inheritance from the property which belonged to her deceased husband. The wife’s share is one-fourth if her husband leaves no child, but if he leaves a child, she gets an eighth. Allah said in the Holy Quran.
Succession under Muslim Law in the absence of a will, i.e., non-testamentary succession is governed by the Muslim Personal Law (Shariat) Application Act, 1937.
On the other hand, in case of testamentary succession when the deceased has made a will, the Shariat law of Muslim applies for the inheritance of the property of the deceased which is generally practiced by Shia and Sunni Muslims.
According to Hanafi law in absence of Sharers and the Residuaries, the estate passed to other relations who are “Distant Kindred and The State by Escheat”. The Distant kindred are third category of the heirs related by blood or consanguinity (zavilarham). It comprises all the cognates of the deceased except those who are include in the sharer’s category. They inherit the property of the deceased only in the absence of the sharers and residuaries.
The State by Escheat
Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited
by Government through the process of escheat. State is regarded as the ultimate heir of
every deceased.
Cases
In, Rukmani bai V. Bismilla Bia ,it was held that where a person dies behind leaving single daughter and no residuary, shall be entitled to her share as well as residuary share in the property of deceased.
Abdul Matin Vs Abdul Azeez Gau AIR 1990 case it was held that where one of the two sisters who had inherited their father’s property died leaving behind a son only and the other died later survived only by her husband, ½ latter’s property was allotted to her husband and the other ½ her sister’s son as a uterine heirs.
The Holy Quran states ‘Allah has purchased from believers their persons and their wealth in lieu of Jannah’. Man is a trustee of the wealth that he owns for the duration of his life. When the term of his life ends, his trusteeship over his wealth and property
References:
• Pdf of Districts.eecourts.gov.in as visited on 11 /March/2021
•Dr.Paras Diwan Family Law book.
• ipleaders.
