LAW OF INHERITANCE – General Rules
Mulla’s Muhammadan Law PPC
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.