Intestate Succession under Muslim law

1) Applicable law

The property of a deceased muslim is to be distributed according to the law of the school to which he belonged at the time of his death. The law of the school to which the heirs belong is immaterial.

2) What property is heritable?

The estate that remains after the payment of the charges that is funeral expenses, debts and legacies, out of the property of the deceased, is heritable property. It includes both movable and immovable property.
As muslim law does not recognise the joint family system, no distinction is made between ancestral and self-acquired property. All property that remains after deduction of the above charges is heritable property.

3) Joint family system not recognised in muslim law.

4) in Sunni law, there is no rule of primogeniture that is the principle which lays down that if a man leaves several sons, the eldest son gets an advantage over the rest.

5) Right of heir presumptive, a mere spes successionis

Under Muslim law, a son or any other heir does not acquire any interest in the property of a person by birth. The right of an heir presumptive comes into existence for the first time only on the death of the propositus. During the lifetime of the propositus, his heirs presumptive have no transferable interest in his property.

Three classes of heirs

Under the hanafi law,there are three classes of heirs as follows:

1) sharers(Quranic heis)

2) Residuaries (Agantic heirs)

3) Distant kindred (Uterine heirs)

The sharers are those who are entitled to a prescribed share of the inheritance; the residuaries are those who take no prescribed share, but succeed to the residue after the claims of the sharers are satisfied; the distant kindred are those relations by blood who are neither sharers, not residuaries.

Property of the deceased, how is it distributed

The first step in the distribution of the estate of deceased Muslim, after payment of his funeral expenses, debts, and legacies(not exceeding one-third of the estate after deducting the former), is to allot their respective shares to such of the relations as belong to the class of the sharers as are entitled to a share. If there are no sharers, the residuaries will succeed to the whole of the inheritance. If there are neither sharers nor residuaries, the inheritance will be divided among such of the kindred as are entitled to succeed thereto.

General rule of succession

Amongst relatives belonging to the same class, the rule of succession is that the nearer relative excludes the more remote. Thus, if the surviving relations are the father, and the father’s father, the father alone will succeed to the whole estate, to the entire exclusion of the grandfather, though both of them belong to the same class of sharers. Similarly, if the surviving relations are a son and son’s son, the son alone will succeed to the whole estate, and son’s son will not be entitled of the inheritance, though both belong to the class of residuaries.

The share of the daughter is 1/2 when there is no son;with the son,she becomes residuary.

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