Muslim Law of inheritance
The Chapter 19 of Muslim Law a is dealt with the inheritance.
The Islamic Law of inheritance is a combination of pre-Islamic customs and rules introduced by the Prophet. Whatever is left after the death of a Muslim is his heritable property. This property can be movable or immovable and ancestral or self acquired. The estate of a deceased Muslim devolves on his heirs separately and the heirs are entitled to hold the property as tenants-in-common, each having a definite share in the property as described in the Muslim law.
The general rule of inheritance states that the inheritance opens only on the death of a person. Nobody can claim any right in the property even if he is an heir. The birth right in the Islamic Law is that any child born into a Muslim family does not get his right to the property mere because of his birth in the said family. In fact no such person becomes a legal heir and, therefore, holds no right till the time of death of the ancestor. If an heir lives even after the death of the ancestor, he becomes a legal heir and is, therefore, entitled to a share in the property. However, if the apparent heirs does not survive his ancestor, then no such right of inheritance or share into he property shall exists.
The doctrine of representation states that if during the life time of an ancestor any of his or her legal heirs dies, but the latter’s heirs still survive then such heir share become entitled to a share in the property as now they shall be
representing their immediate generation. The doctrine of representation finds its recognition in the Roman, English and Hindu Law of inheritance. However, this doctrine representation does not find its place in the Muslim Law of inheritance.
With regard to the rule of distribution, I would like to enlighten that vesting of property takes place immediately on the death of the Propositus. Under the Muslim Law, the distribution of property can be made in two ways, firstly percapita
or per strip distribution. Per-capita distribution method is majorly used in Sunni Law. According to this method, the estate left several by the ancestors get equally distributed among the heirs. Therefore, the share of each person depends on the number of heirs. The heirs does not represent the branch from which he inherits. Per-strip distribution method is recognized in Shia Law. According to it, the property gets distributed among the heir according to the strip, they belong to. Hence the quantum of their inheritance also depends on the branch and number of
persons that belong to the branch. It is note-worthy that the Shia Law recognizes the principle of representation for a limited purpose of calculating the extent of the share of each person.
Moreover, under Shia Law this rule is applicable for determining the quantum of the share of the descendants of a pre-deceased daughter, pre-deceased brother, pre-deceased sister or that of a pre-deceased aunt.
In Muslim Law, the murderer and illegitimate children are not entitled for inheritance and the said persons are disqualified from inheritance. Under Muslim Law, widow is entitled to 1/4th share of the property, if she is issueless, after meeting his funeral and legal expenses and debts. The widow who is having children and grand-children is entitled to 1/8th share of the deceased husband's property. The child in the womb of its mother is competent to inherit only if it is born alive. A child in embryo is regarded as a living person and as such the property vests immediately in that child, but if such child in the womb is not born alive, the share already vested in its divested and it is presumed as if there was no such heir (in the womb) at all. The deceased Muslim who has no legal heirs under Muslim Law, his properties are inherited by the Government through the process of escheat. In Muslim Law, a non-Muslim could not inherit from a Muslim, but the Caste Disabilities Removal Act, 1850 does away in India with the exclusion of a non-Muslim from the inheritance of the property.
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