Muslim property will / heba

Muslim law doesn’t recognize the distinction between ancestral property and self-acquired property. Neither does it consider the joint possession of a property by family members (According to Muslim law members of Muslim families don’t form a joint family).

 Every property that is under the ownership of an individual is subject to be inherited by his heirs. The right of heirs to inherit comes into existence only after the death of the ancestor (person who owned the property).  

1.     The agricultural lands are governed by different agricultural laws or codes of separate states. Similarly, in Madhya Pradesh there is - The Madhya Pradesh Land Revenue Code, 1959, which puts down the rules and procedures regarding the holding of land, liabilities, powers of revenue officers etc.  This act clearly mentions that in case of inheritance of agricultural land personal laws are to be applied. So, it implies that the Muslim inheritance rules under the Muslim Personal Law (Shariat) Act, 1937 will be applicable in your case.

If there is no will then, for dividing the property the most convenient way would be for the legal heirs to decide mutually amongst themselves regarding their respective shares.

There are two ways of property distribution under Muslim law – Per Strip distribution, Per Capita distribution

·       In Sunni law majorly the per capita distribution method is used. Under this the property is equally divided among the heirs.

·       Shia law recognises the per strip method, under this property is distributed among the heirs depending on the class or strip they belong to.  For Instance – If in the first branch there is no legal heir then the property is to be divided among heirs of second branch or strip.  

After distribution of property, the same needs to be mutated (change in the title ownership of a property/transfer of title of property from one person to another after it has been sold or transferred). Through this, the new owner gets the property recorded under his name in the land revenue department.

This mutation process is a must in matters of agricultural lands. The title will not pass to the new owner without mutation, and recording of owner’s name in revenue records.

Mutation of property should be done to avoid any kind of legal disputes that may arise in future after a property has been inherited through a will or without it.

2.     As Muslim law doesn’t distinct between self-acquired or ancestral property, then the person who is the owner can make a will for distribution of his property. But the Muslim law limits a person, that any person can dispose only to the extent of one-third part of his property by will.  The remaining two-third part if to be distributed according to the rule of succession to the heirs.

Under the Sunni personal law, this will for one-third part can be made in favour of both heirs and non-heirs. But if the will transfers property to a non-heir, then it is valid without asking for the consent of legal heirs. Whereas, if will is made in favour of a heir, then it would be invalid, unless it is consented to by the other heirs, after the death of testator.

In matters under Shia law, one can bequeath one-third property in favour of both to an heir or to a non-heir.

§  Exception – If a Muslim solemnised his/her marriage under the Special Marriage Act, 1954   then that person ceases to be a Muslim with respect to the matters of inheritance or succession of property. The Muslim personal law will then not apply to this person, and after his/her death the property would be governed under the provisions of the Indian Succession Act, 1925.