Introduction
The laws related to Property, Succession or can say Inheritance in Islam is mainly generate from the pre-Islamic customs & the rules and regulations formed by prophets. The property can be movable or immovable & ancestral or self-acquired. But there is no distinction between the properties. Legal heirs can have all type of properties, The Islamic law is also one of the oldest personal law as the Hindu law. The Muslim law of Inheritance is a mixture of 4 sources i.e., the Holy Quran, Sunna (prophet), Ijma & Qiya. In Muslim law, there is two types of heirs:
(a) Sharers, entitled to fix share in the property holder’s property.
(b) Residuary, will have that part of property which is left after the shares of sharers.
Rules of Inheritance of Property
Generally, the Inheritance opens on the death of the property holder. Nobody can claim any right on the property even he/she is an heir.
Birth Right
When a child is born in a Muslim family, it does not mean that, that child will get the right of property on his/her birth itself. There is no right of inheritance till the death of the ancestor or the property holder. If an heir lives after the death of ancestor only then that heir can become a Legal Heir & can be eligible to inherit the property.
Rule of Representation
Doctrine of Representation means, during the lifetime of an ancestor, any of his/her legal heir dies, but the latter’s heir still alive then that heir will have the property of the immediate heir as that heir is representing that immediate heir. This doctrine is applicable in Hindu, Roman & English laws but it does not applicable to Muslim laws.
Let us have an example, Suppose A have 2 children’s B & C. B has 2 children’s D & E and C also has 2 children F & G. Now during the lifespan of A, B dies then all the property will go to C & the children of B i.e., D & E does not have any share in the property. C will totally exclude the children of B to inherit the property.
Manner of Distribution
Property in Muslim Law can be divided in two ways:
(a) Per Capita distribution,
(b) Per Strip distribution.
Per Capita distribution is mainly practiced in Sunni law. Under this distribution, the property of ancestors will be equally divided among the heirs. As max as the number of heirs, as maximum the distribution of property. There is no concept of representation of heirs as we studied in the above-mentioned Doctrine of Representation.
Per Strip distribution, is mainly applied in Shia law. Under this distribution, the property of the ancestors gets distributed among the heirs according to the strip they belong to. Inheritance depends on the branch & number of persons that belong to the branch.
Let us have an example, A has 2 sons, B & C. B has 2 children, D & E whereas C has 3 children, F, G & H. Now A is dead. The worth of A’s property is about 20,000. Then B & C would be entitled to an equal share of 10,000 each. Now suppose B & C both dies. Then the children of B can have the property only from the extent of B’s share & same is applicable to C’s children. D & E share shall be 5000 each. F, G & H will have the equal share i.e., approximately 3,333 each. So, we can conclude that the share of each person varies according to their branch & number of persons present in the branch.
Right of Females in inheritance of property
Generally, in Muslims, there is no distinction between men & women in the share of property. Both boy & girl will have equal right to become the legal heir & inherit the property. No special preference is given to nor boy nor girl. However, the share of property of female is half of that of the male heirs. If we see the justification, it is observed that the female will already get Mehr, and maintenance form her Husband whereas males only have the property of their for-fathers for inheritance. Males have the responsibility to maintain their family also.
Rights of Inheritance of a Child in womb
Child in the womb will only get the share in the property if he/she is born alive. If the child is born dead, then there is no share in the property & it shall be considered that it never existed.
Rights of a Childless widow and widow
In Shia law, a Muslim childless widow woman is entitled to inherit 1/4th share of the movable property belonging to her died husband. If we talk with respect to the woman with children, she is entitled to 1/8th share of the property of died husband.
There is an exception in this, if a Muslim man gets married when he is suffering from any mental illness & dies without consummating the marriage then the widow of that man is not entitled to get any share in the property of her dead husband.
Rights of the Stepchildren
Stepchildren did not have any right over the property of their stepparents. They will not get any share in the property. Meanwhile, the stepbrother is entitled to inherit the property from their stepbrother or sister.
Escheat
If a person dies without any legal heir, then all the property of such a person goes to the government as the state is considered as the ultimate heir of the dead person.