Inheritance (M.Muhammadan Law)


LAW OF INHERITANCE – General Rules

Mulla’s Muhammadan Law PPC

1998 edition

Heritable Property

                                             There is no distinction in the islamic law of inheritance between movable and immoveable property or between ancestral and self-acquired property. (other details can be seen in the PPC book)

41. Birth Right not recognized:

                                                              The right of an heir-apparent or presumptive comes into existence for the first time on the death of the ancestor, and he is not entitled until then so any interest in the property to which he would succeed as an heir if he survived the ancestor. (e)

A, who has a son B, makes a gift of his property to C, B, alleging that the gift was produced by undue influence. sues C in A’s life time on the strength  of his right to succeed to A’s property on A’s death. The suit must be dismissed for B has no cause of action against C, B has no of action, for he is not entitled to any interest in A’s property during A’s lifetime. (f) But the gift would be liable to be set aside if the suit was brought after A’s death, provided it was brought within the period of limitation. (g)……(for further explanation see Mullah’s Muhammadan law)

42. Principle of Representation:

                                                                According to the Sunni Law, the expectant right of an heir-apparent cannot pass by succession to his heir, nor can it pass by bequest to a legatee under his will. (g) According to Shia law, it does pass by succession.

43. Transfer of spes successionis: Renunciation of chance of succession:

          The chance of a Muslim heir-apparent succeeding to an estate cannot be the subject of a valid transfer or release. (d)

44. Life estate and vested remainder:

(1) Sunni Law—- The judicial Committee in Hameeda v. Budhun (e) observed that ” the creation of (such) a life estate does not seem to be consistent with Muslim usage and there ought to be very clear proof of so unusual a transaction”; and in Abdul Ghafur, vs Nizamuddin (f) referred to “life-rents’ as a kind of estate which does not appear to be known to ISLAMIC LAW”.(for more details read MML PPC)

(2) Family Settlement: A life-estate may be created by an agreement in the nature of a family settlement,  whether such agreement is preceded by litigation or not, but “the creation of such a life-estate does not seem to be consistent with Muslim usage, and there ought to be very clear proof of so unusual a transaction”. (a) Such an agreement is from its very nature a transaction for a consideration, and it must be distinguished  from a pure hiba or gift mentioned in sub-section (1) above. (b)

(3) Hiba-bil-iwaz: The rule stated in sub-section (1) above does not apply to a hiba- bil -iwaz. As to hiba-bil-iwaz, see section 168 for further details.

(4) Shia Law: it was at one time thought that the Shia law allowed the creation of a life-estate and vested remainder as was held, in Banu Begum’s case [illustration (a)]. In two other cases however it was held, that the Arabic texts there relied upon did not support the conclusion reached, and observed that and estate for life and a vested remainder were known to the Shia law as much as to the Sunni law. (c) in Nawazish Ali Khan v. Ali Raza Khan (d) the privy Council took the view that a life -estate is alien to Islamic law as known in English law, but if on the construction of a hiba, the gift is helf to be one of a limited interest that gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected expect to the extent to which its enjoyment is postponed for the duration of the limited interest.

(5) Wakf: Both under Sunni Law and the Shia law life-estates may be created by Wakf:

45. Vested Inheritance: A “vested inheritance” is the share which, vests in an heir at the moment of the ancestor’s death. If the heir dies before distribution, the share of the inheritance which has vested in him will pass to such persons as are his heirs at the time of his death. The shares, therefore, are to be determined at each death.(e)

46. Joint Family and joint family business: (1) When the members of a Muslim family live in commensality, they do not form a joint family int he sense in which that expression is used in the Hindu Law. (g) Further, in the Islamic Law, there is not, as in the Hindu Law, any presumption that the acquisitions of the several members of a family living and messing together are for the benefit of the family. (h) but if during the continuance of the family properties are acquired in the name of the managing member of the family, and it is proved that they are possessed by all the members jointly, the presumption is that these are the properties of the family, and not the separate properties of the member in whose name they stand.(a)

(for further details read (2) (3) of the inheritance law in MML PPC)

47. Homicide : (1) Under the Sunni law, a person who has caused the death of another, whether intentionally, or by mistake, negligence, or accident, is debarred from succeeding to the estate of that other.

(2) Homicide under the Shia Law is not a bar to succession unless the death was caused intentionally.

[Rumsey’s Al sirajiyya, 14, Baillie, 266, 369]

48. Exclusion of Daughters from inheritance by custom or by statute: Where daughters are excluded from the inheritance either by custom (d) or by statute (e), they should be treated as non-existent, and the shares of the other heirs should be calculated as they would be in default of daughters.

Note: The law stated herein is changed altogether in view of the Muslim Personal Law (shariat) Application Act, 1962. For complete text of Act 1962, see MML)

Custom in kashmir: Among the Gujars and Bakkerwals of Nunar the custom is that daughters do not inherit even if they remain at home. In default of agnates only, they can succeed to the property. Agnates mean grandfather’s descendants in the male line. (b)

Mother, wife, sister and daughter are lawful heirs under the Personal Law and also Natural heirs. The Courts should lean in favour of woman unless existence of custom effortlessly and naturally flows from evidence in the matter of inheritance.

Kindly proceed to next article on meaning classifications of the law of inheritance  in MUSLIMS. (this part was only regulating Mulla’s Muhammadan Law of Pakistan Penal Code which is mostly regulated by Courts of Law in INDO-PAK sub-continent)

There are lists and shares and other details which can be easily acquired online here i can not post it because of lengthiness.

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16 thoughts on “Inheritance (M.Muhammadan Law)”

  1. Sir,
    My wife died 5 years ago due to chronic illness and had to child. I remarried and have a child.
    My first wife had property inherited from her grandfather.
    Her father is alive and have property to be distributed among his 2 sons.

    May I have a claim of the property she owned at the time of death?
    May I have a claim of the property of my father in law?
    Advise?
    Regards,
    Waqas Ahmed

    1. Sir! its Legal issue. Not Religious. If there would any successor from your deceased wife then it was possible for you. But if you have no child from that wife. Then sorry according to my personal view its not possible. But you can consult with a good lawyer.

  2. This TEXT need to be revised as under Muhammadan Law of Inheritance no law or contract can ever exclude any female from her right of inheritance.

  3. Sir My father’s real cousin and mother brother died without child. He has left following relatives:-
    a. One Widow
    b. One maternal sister
    c. 3 x Maternal brother sons/father’s full brothers sons son
    d. One, I, Nice (sister son)/father’s full brothers sons son.
    Please advise distribution of inheritance (land) between above mentioned relatives

  4. Sir, According to Sharia there are prescribed rules of distribution of the Tarka among relatives. If he has no son or daughter or widow.

    Further if he has some “will’ Wasiyah then it must have to be fulfilled and the funereal expenses and after deducting other things like Qarz etc if he was having some.

    kindly consult to Law of Inheritance chart in Pakistan Penal Code. You will get your answer. Further. If you want its Fiqhi Distribution and all other questions related to the matter, kindly consult or sent email to Dawat-e-Islami’s Online Fiqh Council. For Authentic Answer on distribution. We have no right to issue any fatwa or verdict.

  5. In shia sect?????????
    property in the name of

    father(died)
    son1 son2(died)

    grand daughter
    whats is the share of grand daughter ans son1???????????

  6. WHAT IS THE PROOF/CRITERIA OF MUSLIM.MY LATE BROTHER MUSLIM,SUNI GOT MARRIED TO A EUROPEAN LADY WHO WAS CHRISTIAN AND MARRIED UNDER ISLAMIC NIKAH.A BOY WAS
    BORN,BUT THEY WERE DIVORCED AFTER FEW YEARS,BUT PRIOR
    TO DIVORCE,THE BOY CHILD WAS REGISTERED IN PAKISTAN
    EMBASSY AND HAD A PAKISTANI PASSPORT..HE HAS A BIRTH CERTIFICATE FROM PAKISTAN EMBASSY.
    KINDLY GIVE YOUR OPINION ON THE LEGAL RIGHTS OF INHERITANCE OF THE BOY.
    KIND REGARDS
    AYUB KHAN

    1. Sir for knowing Fiqhi Issues and religious legal rights of the child please consult with international darulifta of Dawat-e-Islami at http://www.dawateislami.net . We have no authority to issue any fatwas neither this is legal firm. We only provide basic essential information as a study subject of research.

      After that, in our personal opinion If the boy is been registered here at Pakistan, it has fully inheritance rights as PPC and Law of Inheritance describes. Not only in Pakistan but also the lady (the mother) he (the boy) also had have a right of inheritance from her. Further you can consult with the legal councils for better understanding. Legal boy / girl both have rights from their parents regardless of the sect/age/race

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