INTRODUCTION
Muslim law of succession
constitutes four sources of Islamic law. They are the holy Quran, the Sunna
(the practice of the prophet), the Ijma (the consensus of the learned men of
the community on what should be the decision on a particular point), the Qiya
(an analogical deduction of what is right and just in accordance with the good
principles laid down by god). Muslim law differs from Hindu law in that,
inheritance is not a birthright. A successor cannot legally acquire an
ancestor's property until the ancestor passes away and cannot receive any
distributions while the ancestor is still alive. Additionally, there is no
right to a share of the estate if the heir passes away before the ancestor. In
the absence of a will, Muslim Personal Law (Shariat) Application Act, 1937
governs succession under Islamic law.
DIFFERENCE BETWEEN SHIA
AND SUNNI LAW
According to Islamic
study, the inheritance laws that distinguish the Sunni and Shia legal systems
are the most significant differences between them. It is almost impossible to
overcome these divisions since they are so depth.
According to Hanafi
(Sunni) law, the estate is divided equally among the heirs. As a result, a
person's share is determined by the number of heirs. It might be viewed as a
more straightforward and simplified method of allocating the property.
Under Shia law, the
property will be divided among the heirs in accordance with the group or class
to which they belong. As a result, the inheritance is determined by the branch
and the number of members of that branch.
SUNNI LAW OF INHERITENCE
There are two classes of
heirs under Sunni law
1. THE PRIMARY CLASS
This category includes
legal heirs who are blood relatives to the person. Because they are related
through marriage, the husband and wife are an exception.
This category is further
subdivided into three types:
a)
QURANIC HEIRS OR SHARERS
The Sharers are given
preference over others in the inheritance process, and their respective shares
are specified in the Quran, so no human intervention can deprive them of their
share.
In Muslim law, 12
relationships are classified as Sharers:
1. Husband
2. Wife
3. Daughter
4. Daughter
of a son (or a son’s son or a son’s son’s son )
5. Father
6. Paternal
grandfather
7. Mother
8. Grandmother
on the side of the males
9. Full
sister
10. Consanguine
sister
11. Uterine
sister
12. Uterine brother
The proportion of each sharer varies depending on the scenario or condition. For example, if there are no lateral descendants, the deceased person's wife is entitled to 1/4th of the property and 1/8th of the property otherwise.
In comparison to the inherited property by the male legal heir, female legal heirs are given roughly half a share in their inherited property. The reasoning behind this is that males are given more responsibility and financial obligation in Muslim Law than females. Furthermore, there is no rule of hereditary in Muslim Law.
b)
RESIDUARY CLASS OR AGNATIC HEIRS
Residuary Heirs are also
known as Agnatic Heirs because male relations are the deceased's closest
relatives. Only after Sharers have acquired their respective shares do Agnatic
heirs inherit the property. They do not have a written rule for the share, and
a share in the property is merely a chance for them.
c)
DISTANT KINDRED OR UTERINE HEIRS
These heirs can only
inherit the property if there are no sharers or agnatic heirs of the deceased;
otherwise, the property cannot be inherited by these heirs.
2. THE SUBSIDIARY CLASS
In purely exceptional
cases, these heirs inherit the property.
a) The government (When
there is no legal heir, the state inherits all of the deceased's property
through the escheat process.)
(b) Universal
Representative
(c) Show appreciation to
kin
(d) Contractual Successor
SHIA LAW OF INHERITANCE
Shia Law divides heirs
into two categories: blood relatives (consanguinity) and marriage (affinity).
Heirs by consanguinity are also known as heirs by Nasab, whereas heirs by
affinity are known as heirs by Sabab.
A further classification
is made into three classes based on blood relations. In this case, the first
shall exclude the second from inheritance, while the second shall exclude the
third.
I.
· Parents
· Children
and other lineal descendants
II.
· Grandparents
· Brothers
and sisters and their descendants
III.
· Paternal,
and
· Maternal,
uncles and aunts,
· And their children
There is no difference
between male and female heirs in these three classes, except that a male heir
will have twice the share of a female heir. This is in contrast to Sunni
inheritance law, which excludes daughters from inheritance.
There is no preference in Shia Law for the third class of legal heirs based on whether someone is related to a deceased on the paternal or maternal side. They will share in inheritance regardless of gender or origin of relationship to the deceased as long as they are at the same degree of relationship.
The partner is never excluded from the succession; he or she inherits alongside the nearest blood relative as determined by the chart above. In the presence of a lineal descendant, a husband is entitled to one-fourth of the property; in the absence of a lineal descendant, he is entitled to half of the property. In the absence of a descendant, a wife is entitled to one-eighth of the property and one-fourth in the presence of a descendant.
The eldest son of sound
mind is entitled to wear his father's clothing, Koran, ring, and sword,
provided the deceased left property other than those items.
CONCLUSION
Unlike other religions,
Muslim law in India is not codified. It is entirely based on religious texts
such as the holy Quran. Despite the fact that it is not codified, Muslim law
contains minute details concerning inheritance rights. Shias and Sunnis are two
branches of the Muslim faith. There are some similarities in the laws of both
sub - parts, but there are also some differences. We can see that Sunni law is
stricter than Shia law. On the one hand, Shia law recognises women's rights,
whereas Sunni law does not. Sunni law prioritises the male members of the
family and pays little attention to the needs of the females.
Muslim law, on the
contrary side, was the first to grant women inheritance rights and to require
appropriate documentation for property distribution. Finally, Islam offers a
complex inheritance system that is both stable and scientific, as well as
elegantly harmonious.
Written By:
SHAIK SITARA FATHIMA, [2nd Year, BBA.LLB(Hons.)] under the guidance of Dr. Nagalatha Bathina, Associate Professor, Vignan Institute of Law.
Editorial Director:
Dr. Nagalatha Bathina, Associate Professor, Vignan Institute of Law.
Editors:
Dr. Praveen Kumar, Director, Vignan Institute of Law
Mr. L. Ashish Kumar, Assistant Professor, Vignan Institute of Law
Blog Managed By:
Taj Mahamood Baig [2nd Year, BA.LLB(Hons.)]