Who is a Mahomedan: A person who professes the Mahomedan religion, that is,
acknowledges that there is but one God, and that, Mahomed is his Prophet, is a
Mahomedan? Such a person may be a Mahomedan by birth or he may be a Mahomedan by
conversion. He does not need to observe any particular rites or ceremonies or
be an orthodox believer in that religion. The court can test or gauge the
sincerity of religious belief. It is sufficient if he professes the Mahomedan
religion in the sense that he accepts the unity of God and the prophetic
character of Mahomed.
Conversion to Mahomedanism and right of inheritance:
In the absence of a custom to the contrary, succession to the estate of a
convert to Mahomedanism is governed by the Mahomedan law. According to the
Mahomedan law, a Hindu cannot succeed in the estate of a Mahomedan. Therefore,
if a Hindu, who has a Hindu wife and children, embraces Mahomedanism, and
marries a Mahomedan wife and has children with her, his property will pass on
his death to his Mahomedan wife and children, and not to his Hindu wife or
Sunnis and Shias:
The Mahomedans are divided into two sects, namely, the Sunnis and the Shias.
The Sunnis are divided into four sub-sects, namely, (i) the Hanafi's, (ii) the
Maliki's, (iii) the Shafeis and (iv) the Hanbalis. The Sunni Mahomedans of
India belong principally to the Hanafi school.
Presumption of Sunnism:
The great majority of Mahomedans of this country are Sunnis, the presumption
will be that the parties to a suit or proceeding are Sunnis, unless it is shown
that the parties belong to the Shia sect. The Shia law is not foreign law. It
is part of the law of the land, and so no expert evidence can be led to prove it
as in the case of foreign law.
The Shias are divided into three main sub-sects, namely, (i) the AthnaAsharias,
(ii) the Ismailyas and (iii) the Zaidyas. As most Shias are Athena Asharias,
the presumption is that a Shia is governed by the Athna-Asharia exposition of
Non-Testamentary and Testamentary succession under Muslim law:
In Non-testamentary succession, the Muslim Personal Law (Shariat) Application
Act, 1937 gets applied. On the other hand, in the case of a person who dies
testate i.e., one who has created his will before death, the inheritance is
governed under the relevant Muslim Shariat Law as applicable to the Shias and
In cases where the subject matter of property is an immovable property, situated
in the state of West Bengal, Chennai and Bombay, the Muslims shall be bound by
the Indian Succession Act, 1925. This exception is only for testamentary
Administration of the estate of a deceased Mahomedan:
The estate of a deceased Mahomedan is to be applied successively in payment of
his funeral expenses and death-bed charges; expenses of obtaining probate,
letters of administration, or succession certificate; wages due for service
rendered to the deceased within three months next preceding his death by any
labourer, artisan or domestic servant; other debts of the deceased according to
their respective priorities (if any); and legacies not exceeding one-third of
what remains after all the above payments have been made.
The residue is to be
distributed among the heirs of the deceased according to the law of the sect to
which he belonged at the time of his death, and the heir has a right of
contribution against his co-heirs if, by the action of the judgment creditor
under a decree under sec.52 of the Civil Procedure Code against all the heirs,
he was left with less than his proper share of the net estate of the deceased.
Under Mahomedan law, the payment of the debts of the deceased takes precedence
over the legacies.
Thus, concerning item No.5, it is to be noted that a Mahomedan cannot by Will
dispose of more than one-third of what remains of his property after payment of
his funeral expenses and debts unless the heir's consent thereto. If the
inheritance includes both partible and impartible estate, and the debts of the
deceased have been paid out of the partible estate, there is no right of
contribution against the heir who has succeeded to the impartible estate.
Administration of the estate of a deceased Mohammedan - general rules
The general rules under the Muslim Law of inheritance, irrespective of the
schools, are that:
When a Muslim dies, it is considered important that the following four duties
are performed in the given order:
- The estate of the deceased person includes both the movable and the
immovable property and there exists no distinction between the two.
- There is no concept of joint family property or self-acquired property.
- The question of inheritance of property comes only from the death of a
person. A child born in a Muslim family does not get his right to property
- Paying funeral and burial expenses;
- Paying debts of the deceased;
- Determine the value/will of the deceased;
- Distributing the remaining property and estate to the relatives of the
deceased according to Sharia Law.
It is deemed important under the Muslim law that a person leaves behind wealth
and property for his Family. In such cases, he may name only 1/3rd of his
property to people outside the bloodline. This leaves at least 2/3rd of his
property that can be distributed amongst the family members. Muslim law does not
allow him to present any undue bias towards any particular heir and a
Bequest/Will in favour of some of his heirs without the knowledge and consent of
other legal heirs will be invalid.
Devolution of inheritance
After the death of a person, his property may be devolved in two manners - by
the way of his Will (testamentary) and by the laws of succession when there is
no Will (intestate). After the requisites of inheritance are made, that is, the
burial expenses, debts, and bequests are taken care of, the inheritance is then
devolved. According to Muslim law, the heirs are the successors of the deceased
who are legally recognized by the Sharī'ah to inherit his estate, given that
they are not impeded from inheritance. The heirs succeed to the estate as
tenants-in-common in specified shares. There is no joint tenancy in Muslim Law,
and the heirs are only tenants-in-common.
The heirs are further broadly categorized into two important categories, Sharers
- Sharers include the husband, wife, father, mother, daughter, uterine
brother, uterine sister, the full sister, and the consanguine sister. Of all
these Sharers, there are four who inherit sometimes as sharers and sometimes
as Residuary. These are the father, the daughter, the full sister, and the
- Residuary are the ones who inherit in the absence of the immediate
Sharer, and if the estate remains after being devolved between them.
The third category of Distant Kindred exists, who are neither Sharers nor
Residuaries but are connected by blood relation. Step-Children and Step-Parents
however do not inherit the property from each other. On the failure of all
Natural heirs, the estate of the deceased escheats to the government. The state
is the ultimate heir of all property if no heir exists.
Hanafi (Sunni) Law of Inheritance
Hanafi law of inheritance only focuses on relatives who have descended from a
male member who may be about the deceased person. Each heir holds the property
separately, holding a definite share in the estate.
The Sunni law classifies the heirs of the inheritance into three groups:
The law also fixes shares for the portion of the estate that the heir is
- Quota Heirs beneficiaries
They take an assigned share of the state
and most are first in line. Includes daughters, parents, grandparents, spouses,
brothers, sisters, etc.
Inherit property after the shares have been distributed in
Quota-heirs. They include both male and female members of the family which may
be in the second line of the bloodline.
- When a person has no direct relatives, the property goes to the state.
- The wife is entitled to one-fourth of the share if the couple has no
lineal descendent, and one-eighth if they do
- Husband takes half the share when there exists no lineal descendent and
one-fourth if they do.
- The sole daughter is entitled to half the property. In the case of more
than one daughter, all the daughters jointly get two-thirds of the estate.
- If both, daughter and son exist then the daughter ceases to be a sharer
and becomes a residuary sharer instead. Here, a son is entitled to double
what a daughter inherits.
Shia Law of inheritance
The Shia Law divides heirs into two groups - by blood relations (consanguinity)
and by marriage (affinity). The heirs by consanguinity are also termed heirs by Nasab, while the heirs by affinity are heirs by Sabab.
Based on blood relations a further classification is drawn into three classes.
Here the first shall exclude the second from inheritance and the second exclude
- Children and other lineal descendants
- Brothers and sisters and their descendants
- Paternal, and
- maternal, uncles and aunts, and
- their children
The succession act for Muslims in India is not singular but a composition of
many individual laws. They apply differently to people according to the sect
that they belong to. There are many differences between Sunni and Shia laws of
inheritance which have been touched upon in this article. Moreover, it is
significant that the general principles of Muslim law apply evenly to the whole
The laws are not completely codified, but they are a result of
customs and practices that have been followed over centuries in the Islamic
community all around the world. The estate and intestate successions are both
distinct and follow separate processes for the devolution of inheritance.