(1) Nature of the Heritable Property:
Heritable property is that property which is available to the legal heirs for inheritance. After the death of a Muslim, his properties are utilised for the payment of funeral expenses, debts and the legacies i.e. wills, if any. After these payments, the remaining property is called heritable property. Under Muslim law, every kind of property may be a heritable property.
For purposes of inheritance, Muslim law does not make any distinction between corpus and usufruct or, between movable and immovable, or, corporeal and incorporeal property. Under English law, there is some difference in the inheritance of movable and immovable property.
But, under Muslim law there is no such distinction; any property, which was in the ownership of the deceased at the moment of his death, may be the subject-matter of inheritance.
Shia Law:
Under the Shia law, a childless widow is entitled to get her share (1/4) in the inheritance only from the movable property left by her deceased husband.
(2) Joint or Ancestral Property:
The concept of a joint family or of coparcenaries property (as is recognised under Hindu law) is not known to Muslims. Whenever a Muslim dies, his properties devolve on his heirs in definite share of which each heir becomes an absolute owner. Subsequently, upon the death of such heir, his properties are again inherited by his legal heirs, and this process continues.
Thus, unlike Hindu law, there is no provision for any ancestral or joint-family property. Accordingly, under Muslim law of inheritance, no distinction has been made between self-acquired and ancestral property. All properties, whether acquired by a Muslim himself or inherited by his ancestors, are regarded as an individual property and, may be inherited by his legal heirs.
(3) No Birth-Right:
Inheritance opens only after the death of a Muslim. No person may be an heir of a living person (Nemoest haeres viventis). Therefore, unless a person dies, his heirs have no interest in his properties. Unlike Hindu law, the Muslim law of inheritance does not recognise the concept of ‘right by birth’ (Janmaswatvavad).
Under Muslim law, an heir does not possess any right at all before the death of an ancestor. It is only the death of a Muslim which gives the right of inheritance to his legal heirs.
As a matter of fact, unless a person dies, his relatives are not his legal heirs; they are simply his heir-apparent and have merely a ‘chance of succession, (spes successions). If such an heir-apparent survives a Muslim, he becomes his legal heir and the right of inheritance accrues to him. If the heir-apparent does not survive a Muslim, he cannot be regarded an heir and has no right to inherit the property.
(4) Doctrine of Representation:
Doctrine of representation is a well known principle recognised by the Roman, English and Hindu laws of inheritance. Under the principle of representation, as is recognised by these systems of laws, the son of a predeceased son represents his father for purposes of inheritance. The doctrine of representation may be explained with the help of the diagram given below. P has two sons A and B. A has got two sons С and D and В has a son E.
During the life of P, his family members are his two sons (A and B), and three grandsons (C, D and E). Unfortunately, В pre-deceases P, i.e. В dies before the death of P. Subsequently, when P also dies, the sole surviving members of the family of P are A and three grandsons, C, D and E.
Under the doctrine of representation, E will represent his pre-deceased father В and would be entitled to inherit the properties of P in the same manner as В would have inherited had he been alive at the time of P’s death.
But, Muslim law does not recognise the doctrine of representation. Under Muslim law, the nearer excludes the remoter. Accordingly, in the illustration given above, E will be totally excluded from inheriting the properties of P. Both, under Shia as well as under Sunni law, E has no right to inherit the properties of P. The result is that E cannot take the plea that he represents his pre-deceased father (В) and should be substituted in his place.
Under Muslim law, the nearer heir totally excludes a remoter heir from inheritance. That is to say, if there are two heirs who claim inheritance from a common ancestor, the heir who is nearer (in degree) to the deceased, would exclude the heir who is remoter. Thus, between A and E, A will totally exclude E because A is nearer to P in degree whereas, E belongs to the second degree of generation. The Muslim jurists justify the reason for denying the right of representation on the ground that a person has not even an inchoate right to the property of his ancestor until the death of that ancestor.
Accordingly, they argue that there can be no claim through a deceased person in whom no right could have been vested by any possibility. But, it may be submitted that non-recognition of principles of representation under the Muslim law of inheritance, seems to be unreasonable and harsh. It is cruel that a son, whose father is dead, is unable to inherit the properties of his grandfather together with his uncle.
(5) Per-Capita and Per-Strip Distribution:
Succession among the heirs of the same class but belonging to different branches may either be per-capita or per-strips. In a per-capita distribution, the succession is according to the ‘number of heirs’ (i.e. heads). Among them the estate is equally divided; therefore, each heir gets equal quantity of property from the heritable assets of the deceased.
On the other hand, in a per strip distribution, the several heirs who belong to different branches, get their share only from that property which is available to the branch to which they belong. In other words, in the stripital succession, the quantum of property available to each heir depends on the property available to his branch rather than the number of all the heirs.
Under Sunni law, the distribution of the assets is per-capita. That is to say an heir does not in any respect represent the branch from which he inherits. The per-capita distribution may be illustrated by the following diagram.
M has got two sons A and B. A has three sons, S1, S2 and S3. В has two sons S4 and S5. When M dies there are two branches of succession, one of A and the other of B. Suppose, A and В both die before the death of M so that the sole surviving heirs of M are his five grandsons.
Now, under the per-capita scheme of distribution (as recognised under Sunni law) the total number of claimants (heirs) is five and the heritable property would be equally divided among all of them irrespective of the branch to which an heir belongs.
Therefore, each of them would get 1/5 of the total assets of M. It may be noted that under Sunni law the principle of representation is recognised neither in the matter of determining the claim of an heir, nor in determining the quantum of share of each heir.
Shia Law:
Under the Shia law, if there are several heirs of the same class but they descend from different branches, the distribution among them is per strip. That is to say, the quantum of property inherited by each of them depends upon the property available to that particular branch to which they belong. In the above-mentioned illustration, A and В constitute two branches, each having 1/2 of M’s property. Both, A and В pre-decease M.
But, the quantum of property available to each of their branch would remain the same. Therefore, the surviving heirs of A namely, S1, S2, 53 would get equal shares out of 1/2 which is quantum of property available to the branch of A. Thus S1, S2 and S3 would get 1/6 each. Similarly, the quantum of property available to the branch of В is also 1/2 but the descendants from this branch are only two. Accordingly, the 1/2 property of В would be equally shared by S4and S5.
Therefore, 54 and S5 would get 1/4 each. It is significant to note that for a limited purpose of calculating the share of each heir, the Shia law accepts the principle of representation. Moreover, under the Shia law this rule is applicable for determining the quantum of share also of the descendants of a pre-deceased daughter, pre-deceased brother, pre-deceased sister or that of a pre-deceased aunt.
(6) Female’s Right of Inheritance:
Males and females have equal rights of inheritance. Upon the death of a Muslim, if his heirs include also the females then, male and female heirs inherit the properties simultaneously. Males have no preferential right of inheritance over the females, but normally the share of a male is double the share of a female.
In other words, although there is no difference between male and female heir in so far as their respective rights of inheritance is concerned but generally the quantum of property inherited by a female heir is half of the property given to a male of equal status (degree).
The principle that normally the share of a male is double the share of a female has some justification. Under Muslim law, while a female heir gets (or hopes to get in future) an additional money or property as her Mehr and maintenance from her husband, her male counterpart gets none of the two benefits. Moreover, the male heir is primarily liable for the maintenance of his children whereas, the female heir may have this liability only in an extraordinary case.
(7) A Child in the Womb:
A child in the womb of its mother is competent to inherit provided 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 a child in the womb is not born alive, the share already vested in it is divested and, it is presumed as if there was no such heir (in the womb) at all.
(8) P
