The following sub-topics are considered here:
1. Which law prevails?
2. What property is heritable?
3. Joint family system not recognised
4. No rule of primogeniture
5. Right of heir presumptive, a mere spec successionis
6. Vested inheritance
7. No ‘principle of representation’ in Sunni law
8. Suit by creditor against heirs
9. Life estate and vested remainder.
1. Which Law Prevails?
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, viz., funeral expenses, debts and legacies, out of the property of the deceased, is heritable property; it includes both movable and immovable property.
As Muhammadan 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. There is only one mode of devolution, namely, by way of inheritance.
3. Joint Family System Not Recognised:
As stated above, the law does not recognise a Muslim joint family as a legal entity. When the members of a Muslim family live together, they do not form a joint family, in the sense in which the term is used in Hindu Law. Again, if these members carry on business jointly and make acquisitions, they do not constitute a joint family firm, in the sense in which that term is used in Hindu Law, so as to attract the legal incidents of such a firm.
The rights of such members, and those of their heirs, are to be determined with reference to express or implied agreements, if any, e.g., relationship of principal and agent, partnership, constructive trust, and the like.
Under the Muhammadan law, the sons do not, by birth, acquire, during the life-time of the father, any interest in the property belonging to the father. Hence, where it is not proved that a Muslim father and sons entered into a contract of partnership, the sons do not, by their birth, become partners with the father, the partnership property remains exclusively of the father, and the sons cannot be sued with regard to transactions for which the father alone is responsible. (Tarachand v. Mohideen, (1935) 37 Bom. L.R. 654)
4. No Rule of Primogeniture:
In Muhammadan 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.
Under the Shia law, however, habua, i.e., the deceased father’s wearing apparel, the Quran, his ring and his sword become the property of the eldest son.
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 mere birth. The right of an heir presumptive comes into existence for the first time only on the death of the propositus. During the life-time of the propositus, his heirs presumptive have no transferable interest in his property.
All that the heirs have is a mere chance of inheriting to the estate in case they survive the propositus, that is, a mere spes successionis. Such an expectancy, therefore, cannot be the subject of a valid transfer.
1. Hasam AH v. Nazo, (1889) I.L.R. 11 All. 456:
A, who had a son, B, made a gift of his property to С. B, alleging that the gift was procured by undue influence, sued С in A’s life-time on the strength of his right to succeed to A’s property on A’s death.
The Court held, dismissing B’s suit, that the nature of right claimed by В was only a spes successionis, and that he had no cause of action till A died.
2. Sumsuddin v. Abdul Hussein, (1906) I.L.R. 31 Bom. 165:
A, a Hanafi male, marries B, a Shia female. Sometime after the marriage, A gives one of his immovable properties to В in lieu of her dower, and agrees not to claim any share of it as her heir on her death. В dies, leaving A and her father, С. С sues A to recover possession of the said property, alleging that A had agreed not to claim any share thereof on B’s death.
The relinquishment of a contingent right of inheritance by a Muslim heir is generally void in Muhammadan Law, In Abdul Kafoor v. Abdur Razak, (1958 Ii M.L.J. 492), it was, therefore, held dismissing C’s suit, that the relinquishment by an heir apparent of his right of inheritance is invalid under Muhammadan law, the right of inheritance being merely a spes successionis.
3. A has a son, B, and a daughter C. A pays Rs. 1,000 to С and obtains from her a writing, whereby in consideration of Rs. 1,000 received by her from A, she renounces her right to inherit A’s property. A then dies, and С sues В for her share (one-third) of the property left by A. В sets up in defence, the release passed by С to her father. Discuss whether С is entitled to her share in her father’s estate.
Here, the release is no defence to the suit, and С is entitled to her share of the inheritance, as the transfer by her was merely a transfer of a spes successionis, and hence inoperative. But С is bound to bring into account the amount received by her from her father. (Samsuddin v. Abdul Hussein (1906) I.L.R. 31 Bom. 165)
6. Vested Inheritance:
The inheritance of a Muslim vests at his death by a specific title in each individual heir, although it may not be possible to determine exactly what property will go to each heir, until all the prior charges, viz. funeral expenses, debts and legacies, have been paid. In other words, succession is never allowed to be in abeyance.
A “vested inheritance”, therefore, is the share which vests in an heir at the moment of the death of the deceased whose property is claimed. If any of the heirs dies before the distribution, the share of the inheritance which has already vested in him or her will pass to his or her heirs.
7. No ‘Principle of Representation’ in Sunni Law:
The principle of representation has no place in the Sunni law of inheritance. In other words, the expectant right of an heir presumptive does not pass to his heirs. On the death of the heir presumptive in the life-time of the propositus, the heirs of such an heir presumptive have no right to claim his share in the property of the propositus, as representing the heir.
Thus A, a Muslim has two sons, В and С. В dies in the life-time of A, leaving a son, X. Then, A dies, leaving C, his son, and X, his grandson. Following the above rule, the whole property of A passes to C, to the total exclusion of X.
In other words, it is not open to X to argue that he is entitled to B’s share as representing B. Thus, the son of a predeceased son is not an heir under Muhammadan law, when the deceased leaves other sons behind him. (Moola Cassim v. Moola Abdul, (1905) 33 Cal. 173)
In Moola Cassim’s case (above), the Privy Council observed as follows:
“It is a well-known principle of Muhammadan law that if any of the children of a man die before the opening of the succession to his estate, leaving children behind, these grand-children are entirely excluded from the inheritance by their uncles and aunts.”
Thus, the rule which is followed in the Islamic law of inheritance is that the nearer heir excludes the more remote, and there is no “representation”. In the above case, X is entirely excluded by C, and С thus becomes the sole heir.
It has been pointed out by various authors that the refusal of Muhammadan law to recognise the doctrine of representation creates a lot of hardship. As observed by Macnaughten, “It certainly seems to be a harsh rule, and is at variance with the English, Roman and Hindu laws.”
Whatever purpose the rule may have served in the past, it is no longer considered to be just and equitable by most Muslim thinkers. It is, therefore, heartening to see that the rule has been abolished in Pakistan and the doctrine of representation is now accepted in that country.
Subject to the application of the general rule that the nearer in degree excludes the more remote, in each class of heirs, the cardinal principle underlying the Shia law of inheritance is the principle of representation. Thus, if there are no sons or daughters, grand-children step in according to the principle of representation in the following manner:
(i) The children of a deceased daughter take amongst themselves, the share that their mother would have taken;
(ii) The daughter of a deceased son shares with other children of that deceased son, the share which would have been assigned to the father; and
(iii) Where there are sons, or sons and daughters of different sons, the distribution is according to the stocks, and not according to individuals. The children of each son have the exclusive right to what their father would have taken.
The principle of representation is recognised in the Shia law of inheritance only in the sense that the succession is always per stirpes, and not per capita. Hence, the descendants of a deceased son represent the son, and take the share which he would have taken, if he were living at the time when the inheritance opens. Similarly, the descendants of a deceased daughter represent the daughter, and take the share which she would have taken, if she were living at the time when the inheritance opens.
Since the principle of representation has no place in Sunni law, succession among grand-children will be per capita, and not per stirpes, as under Hindu law. Thus, if a Sunni Muslim dies leaving two grandsons through one predeceased son, and three grandsons from another predeceased son, all the five grandsons will receive a fifth of the estate, If the principle of representation was to be applied, the two grandsons from one son, would have divided between themselves the share of their father, that is half of the estate, and the other half of the estate would have been distributed equally among the three sons of the other son.
8. Suit by Creditor against Heirs:
If there is no executor or administrator, the creditor can proceed against the heirs of the deceased. Where the estate of the deceased has not been distributed between the heirs, he is entitled to execute the decree against the property as a whole, without regard to the extent of the liability of the heirs inter se.
A Muslim dies leaving a widow and a daughter. After his death, a creditor of the deceased sues the widow for the recovery of a debt due to him, and a decree is passed in his favour, to be recovered out of the estate of the deceased. In execution of the decree, the right, title and interest of the deceased in a house is sold and is purchased by P. The daughter, who was not a party to the suit, subsequently sues P to recover by partition her share in the house. Will she succeed?
In these circumstances, the daughter, not being a party to the creditor’s suit, is not bound by the decree passed in the suit and she is entitled to recover her share in the house. (Bhagirthibai v. Roshanbi, (1919) I.L.R. 43 Bom. 412 51 I.C. 18)
9. Life-Estate and Vested Remainder:
An interesting question arises as to whether life-estates and vested remainders are recognised by Islamic law. In Hameeda v. Budlun, (1872 17 W.R. 525), the Privy Council observed that “the creation of a life-estate does not seem to be consistent with Mahomedan usage, and there ought to be very clear proof of so unusual a transaction”.
In this connection, a difficulty arises out of the Muhammadan law of gifts. If a gift is made subject to a condition which derogates from the grant, the condition is void. However, a condition which does not affect the corpus of the thing which is gifted is not within the rule, as for instance, when there is a reservation of the income for the donor of the gift. Accordingly, it has been held in some cases that a gift for life operates as an absolute gift.
The assumption underlying this doctrine is that what is given is the corporeal thing itself; and as the refusal to permit gifts of life- interests gives rise to serious inconvenience, this assumption has often been challenged. Thus, it has been argued that it can be said, is such cases, that what is given is, for instance, not the land, but the interest in the land, and that this is given absolutely and unconditionally, there being no intention to make a gift of the corpus itself.
In Nawazish Ali Khan v. Ali Raza Khan (1948 75 I.A. 62), the Privy Council observed that there was no difference between the several schools of Muslim laws in their fundamental conception of property and ownership. A limited interest takes effect out of the usufruct under any of the schools.
The Privy Council remarked that it would be the duty of the court to construe the gift in each case, and observed : “If it is a gift of the corpus, then, any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant; but if upon construction, the gift is held to be one of a limited interest, the gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected, except to the extent to which its enjoyment is postponed for the duration of the limitation interest.”
The same question was raised before the Privy Council in Amjad Khan v. Ashraf Khan (1929 56 I.A. 213). In this case, there was a document which described the transaction as “a gift without consideration”. The document recited that the donee and the heirs of the donor had given their consent to the transaction.
Under the deed, the donor gave to his wife his entire property with a power to alienate one-third of the property, and as to the rest, it was stated that “she shall not possess any power of alienation, but she shall remain in possession thereof for her life-time. After the death of the donee, the entire property gifted away by this document shall revert to the donor’s collaterals.”
The question to be decided in this case was whether the interest given in one-third of the property was an absolute interest, or whether it was only a life-interest coupled with the power to alienate.
On the facts of the case, the Privy Council held that it was a life- interest, with a power to alienate. Construing the deed, the Court observed that the subject-matter of the gift was only a life-interest, together with the power of alienation as regards one-third of the property. On this basis, the Court dismissed the appeal of the heir of the donee, stating that the gift of a life-estate was not given the effect of an absolute estate.
The High Courts of Mumbai, Kolkata and Nagpur have held that the gift of a life-estate is valid. In Nawazish Ali Khan v. Ali Raza Khan (referred to above), the Privy Council has observed that a life-estate, as known to English law, cannot be created by hiba, whether inter vivos or by will.
In each case, the question is always a question of construction. If there is a gift to A for life, and thereafter to B, the Court will presumably construe the gift as a gift of the corpus to В absolutely, and of the usufruct to A for life. If, however, the gift is only to A for life, it would be construed as a gift of a life-interest to A, and the corpus would vest in the heirs of B.
In Abdul Wahid Khan v. Mt. Nuran Bibi (1885 12 I.A. 91), the Privy Council has held that Muhammadan law does not seem to recognise an interest which may be called vested remainder. This case is now accepted as an authority for the proposition that the remainderman will not get anything, unless he survives the person who is given the life-interest.
All the above cases have now to be read subject to the judgment of the Privy Council in Nawazish Alikhan’s Case, referred to above. The Privy Council, in the course of the judgment in this case, made the following observations, which are pertinent:
“In their Lordships’ opinion, this view of the matter introduces into Muslim law, legal terms and conceptions of ownership, familiar enough in English law, but wholly alien to Muslim law. In general, Muslim law draws no distinction between real and personal property, and their Lordships know of no authoritative work on Muslim law which affirms that Muslim law recognized the splitting up of ownership of land into estates, distinguished in point of quality, like legal and equitable estates, or in point of duration, like estates in fee simple, in tail, for life, or in remainder.
What Muslim law does recognise and insist upon, is the distinction between the corpus of the property itself (any) and the usufruct in the property (manafi). Over the corpus of property, the law recognizes only absolute dominion heritable and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion, the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property, and the dominion over the corpus takes effect subject to any such limited interests.”