ADMINISTRATION & SUCCESSION

Strictly speaking, Muslim law did not recognize the concept of administration of estates. It merely laid down

machinery for the distribution of the estate of the deceased among the legatees and the heirs.

“It is as though die estate were a round cake, which from a distance seems entire; but as each heir approaches the

table, the cake is found to be carefully cut up and divided proportionately; and all that remains to be done is to hand

over to him his particular piece.”

The rules governing non testamentary succession for the Muslim is the Shariat Act, 1937 (Muslim personal laws) and

the matters of testamentary succession is governed by the Indian Succession Act, 1925. In cases where the subject

matter of property is an immovable property which is situated in the state of West Bengal or comes within the

jurisdiction of Madras or Bombay High Court, the Muslims shall be bound by the Indian Succession Act, 1925. This

exception is only for the purposes of testamentary succession.

If a person marries under the Special Marriage Act, 1954 then the Muslim personal laws will not apply on him.
 ADMINISTRATION OF ESTATE

The administration of estate means that the estate of the deceased is to be applied for
the payment of the following(This is under section 39 of Indian Succession Act).

1. Funeral expenses

2. Expenses of proceedings for obtaining probate or letters of administration,

3. Wages and services rendered to the deceased within three months of his death,

4. Other debts of the deceased

5. Legacies, not exceeding one third of what is left (will).

These are called the primary liabilities of an estate and has to be paid according to
priority.
 ADMINISTATOR/EXECUTOR
The administrator of deceased man are his legal representative only if there is no heir. It is his
duty to collect the assets, discharge the debts, pay the legacies, and distribute the balance of
assets among the heirs. An executor or administrator can represent an estate only after they
have shown a probate, in case of will, or a letter of administration
Hanafi:
In case the executor is not able to carry out the administration in his life time, he can appoint a
successor to himself to carry out the purpose of the will. In case he dies without appointing a
successor, it seems, the appointment of another executor by the Court will be necessary.
Shia:
Unless an executor has been authorized to nominate his successor by the testator, he has no
power of appointing a successor to himself.
According to the strict Muslim law, a non-Muslim cannot be an executor but in
modern India a non-Muslim can be validly appointed as an executor.

Any person claiming an interest in the estate of the deceased may bring a suit for
administration for the purpose of ascertainment of the estate and of debts and
liabilities relating to it, for a proper allocation of debts to the properties to which
different rules of descent apply, for accounts, and for the declaration and delivery
of the interests therein to those entitled to him.

If the property is in the hands of the administrators or executors of the deceased,

the suit by the creditor shall be against him and not against legal heirs, any decree
against the executor shall automatically bind the legal heirs and residuaries.
 VESTING OF INHERITANCE

Vesting of estate in executor and administrator – u/s 211 of ISA 1925, he is the legal
representative for all the purposes and all the property of the deceased vests in him as such.

A suit of administration may be brought by any person claiming debts and liabilities relating to it,
for a proper allocation of debts to the properties to which different rules of descent apply, for
accounts, and for the declarations and delivery of the interest therein to those entitled to him.

When a Muslim dies leaving a will and if he had appointed an executor, his estate vests in him as
he is the legal representative of he deceased. In particular (i) the bequeathable one-third vests in
him for the purpose of the will, and (ii) the rest vests in him as a bare trustee for the heirs.

The estate of a Muslim dying intestate devolves under the Islamic law upon his heirs at the
moment of his death, i.e. the estate vests immediately in each heir in proportion to the shares
ordained by the personal law.
 JAFRI BEGUM’S CASE

A Muslim man died leaving behind his father, mother, widow, 2 sons, 3 daughters, a
brother, and the husband of third daughter, Jafri Begum

The husband brought a suit and obtained a decree against the widow, 2 sons and 3
daughters for a debt due by the deceased. In execution of the decree a portion of the
village belonging to the deceased was sold and purchased by the husband himself.

A separate suit was filed again later by the brother against the widow, 2 sons and 3
daughters to recover his share of the estate, as he was not a party to the previous suit.
The suit was referred to a full bench and the judgment of Mahmood.J deals with the law
laying down three propositions
• In the case of Jafri Bagum, 1885, three rules were laid down, and it can be concluded
that they sum up the laws in India regarding administration of estate.

• The rules are:

1. Muslim dies leaving debts unpaid, his estate devolves immediately on his heirs,
without being suspended by payment of debt.

2. A decree passed against one such heir, does not bind the others.

3. If one heir, not being a party to the suit, brings a suit against decree holder for recovery
of his shares , he must pay his proportionate share of debt before recovering his share.

The court directed the brother to pay his proportionate share of the debt and claim for
the share as Residuary.
An executor is required to do the following:

(a) To collect all the assets of the deceased, including the debts,

(b) To pay all charges against the estate, such as funeral expenses,

(c) To pay the debts of the deceased,

(d) To pay the legacies, and

(e) To distribute the remaining property among the heirs.

For the purpose of realization of the debts of the deceased, an executor who had
not obtained the probate might obtain a certificate under the Administrator
General’s Act, 1963, or a succession certificate under the Indian Succession Act,
1925.
In case a Muslim dies intestate and letters of administration have been obtained,
then the assets of the deceased vest in the administrator. The administrator is the
legal representative of the deceased. An administrator is required to do the
following:

(a) To collect the assets and debts of the deceased,

(b) To pay all the charges against the estate, such as funeral expenses,

(c) To pay the debts, and,

(d) To distribute the balance among the heirs.

 PAYMENT OF DEBTS

Prophet Mohamed laid great emphasis on payment of debts, both religiously and
legally. The creditors of a dead Muslim man is entitled to recover his debt amount
from the legal representatives of the estate. In cases where there is no executor or
administrator appointed, then the heirs can be sued for payment of such debts.

A creditor need not sue each and every heir separately to recover his debt, he
need not enjoined all hires as a co- defendant.

An heir is liable to pay the debt only as much as it is proportionate to his share in
the estate. P.N. Veetil Narayani V. Pathumma Beevi, 1991, it was held
 ALIENATION OF ESTATE

If an heir wishes to transfer his share of the estate before paying off of the debts,
then he can sell it off , mortgage it off, etc but not gift it.

He can dispose it off in exchange of money so that the creditors can sue him fr
their debts.

But the creditors cannot follow the estate of the deceased, after it has been passed
off to the hands of a bona fide purchaser for value. Land Mortgage Bank V.
Bidyadhar, 1880.

Unpaid dower is in the nature of an actionable claim, Widow does not get priority.
If a charge has been created against the property then the transferee makes
payment of the share of such estate.

An heir can be in possession of the entire estate, but he is owner of only his share
even if the estate has not been partitioned.

Creditors also may enforce their claim on the legatees along with the heirs.
These amendments had a different meaning for both Shias and Sunnis.

The Sunnis to some extent follow the pre Islamic ways and have added these
changes on top of that as has been mentioned in the Koran.

The Shias n the other hand deduced certain principles that they considered to be
the essence of these amendments which are mentioned in the Koran, and mixed
them with the pre Islamic customs which gave birth to a different set of rules
altogether.
 INHERITANCE
• Succession to property can be testamentary or intestate. Testamentary, i.e. with a will is called
legacy and without will is called inheritance.

• After all the primary liabilities are paid off the remaining property is called the heritable
property. Inheritance is considered as an integral part of Shariah Law. Muslims inherit from one
another as stated in the Qur'an. Hence, there is a legal share for relatives of the decedent in his
estate and property. The major rules of inheritance are detailed in Qur'an, Hadith and Fiqh.

• The rules of inheritance are enshrined in the 4th Chapter of the Koran.

• The rules on succession establish the rights of various heirs with mathematical precision and
that in itself is a major technical achievement of Muslim legal scholars.

• Sunni law of inheritance, the expectant right of an heir can not be passed on in succession to
his heirs, nor can it pass by bequest.
• Nature of property: Under Muslim law there is no distinction between ancestral
and self acquired property. Under Muslim law there is no concept of joint family,
subjected to customs. Some heirs might have interest in the heritage but are not a
part of the family and also the other way around. No distinction between movable
and non movable property. Exception: Childless widow can inherit ¼ of movable
(Shia)

• Not a birth right: Muslims have no birth right to property, it opens up only after
death of a Muslim, no spes succession.

• No representation rule: The nearer excludes the remote (except Shias)

For example, A has two sons B and C. B has 2 children i.e. D and E and C also has two
children F and G. During the life time of A if B dies, then on the event of death of A only C
shall be entitled to inherit A’s property. B’s children D and E shall not be entitled to any
share in A’s property. Between C and B’s children D and E, C would totally exclude D and E
from inheriting the property. Therefore, it is said that the nearer heir excludes the remote
heir from inheritance.
• Manner of Distribution: Under the Muslim law, distribution of property can be made in
two ways per capita or per strip distribution. (Per – Capita distribution method is
majorly used in the Sunni law)
According to this method, the estate left over by the ancestors gets equally distributed
among the heirs. Therefore, the share of each person depends on the number of heirs.
The heir does not represent the branch from which he inherits.
Per strip distribution method is recognized in the Shia law. According to this
method of property inheritance, the property gets distributed among the heirs
according to the strip they belong to.
Inheritance is called fara’id.

Pre-Islamic customary laws of inheritance were as follows:

1. The nearest male agnate

2. Females and cognates were excluded

3. Descendants were preferred over ascendants

4. Agnates equally distant, estate divided

Principles of Islamic law were as follows:

1. Husband and wife were each others heirs

2. Females and cognates made heirs

3. Parents and ascendants were given the right to inherit in the presence of descendants.

4. Female were given half of male

The Koran did not completely abrogate the pre Islamic laws, but amended them. The newly added people in the line
of inheritance are called the ‘newly crated heirs’, mostly females and cognates.
 SUNNI LAW OF INHERITANCE

The Sunni law recognizes three classes of heirs:

(1) Ashabul faraiz or Koranic heirs: The sharers whose shares or proportions have
been fixed in the Quran. They take their specific portions and the residue is then
divided among the Agnates.

(2) The Asabah or Agnates, or Residuary heirs.

(3) Dhauil-arham or Cognates or Uterine Relationsor Distant kindred i.e. relations

who do not fall in the category of Koranic sharers or Agnates.
 Ashabul faraiz or Koranic heirs

• The sharers or Ashabul-faraiz are altogether twelve in number - four males and
eight females.

• The four males are:

1 the father,

2 the grandfather or lineal male ascendant

3 the uterine brothers, and

4 the husband.
The females are:

1. Wife

2. daughter,

3. son's daughter or the daughter of a lineal male descendant howsoever low,

4. mother,

5. true grandmother,

6. full sister,

7. consanguine sister i.e. half sister on the father's side, and

8. uterine sister i.e. half-sisters on the mother's side.

• The Hanafis divide the ascendants for purposes of succession into two classes
viz., true and false.

• The true grandfather is an ascendant in whose line of relationship to the

deceased no female intervenes. For example, a father's father is a true
grandfather, whereas a mother's father is a false grandfather.

• A true grandmother is a female ancestor in whose line of relationship with the

deceased no false grandfather intervenes. Thus a mother’s mother or a father’s
father’s mother are true grandmothers, whereas mother’s father’s mother is a
false grandmother.
• True grand father – means a male ancestor between whom and the deceased ‘no
female intervenes’;

• False grand father- means a male ancestor between whom and the deceased a female
intervenes, like – mother’s father, mother’s mother’s father, mother’s father father,
father’s mother’s father, etc.,

• True grand mother – means a female ancestor between whom and the deceased no
false grandfather intervenes, thus, father’s mother, mother’s mother, father’s mother’s
mother, father’s father’s mother, mother’s mother’s mother are all true are all true
grand mothers.

• False grand father – a female ancestor between whom and the deceased a false grand
father intervenes like, mother’s father’s mother;
 The shares of the Koranic heirs
Father: gets 1/6th when the deceased leaves a son or son's son or any other male line
descendant.

Father's father. or any other lineal male ascendant gets the share of the father: i.e. 1/6th.

Uterine brother: When only one, and no child or the child of a son, father or true
grandfather...... 1/6th.

When two or more and no child or the child of a son or father or true grandfather ......
1/3rd.

Husband:

(1) When the deceased leaves a child or the child of a son howsoever low...... 1/4th.

(2) Without them ...... 1/2 half.

Widow :

(1) When the deceased has left no child or the child of a son -1/4th

• When there is child or the child of a son-1/8th

Daughter :

(1) When only one and no son so as to render a residuary - 1/2.

(2) When two or more-2/3rd

Son's daughter

(1) When only one and no child or sons daughter : son or other male lineal descendant - 1/2.

(2) When two or more and no child or son's son or other male lineal descendant-2/3.

(3) When co-existing with one daughter and no son or son's son or other male lineal descendant-1/6.
When there are two daughters, the son's daughters are excluded unless there happens to be with them a
lineal male descendant of the same or lower degree. The son's daughters or the daughters of any lineal

male descendant are excluded by a son or by a lineal male descendant nearer in degree than themselves.

Mother:

(1) When co-existing with a child of the propositus the person immediately concerned] or a child of his or
her son, or two or more brothers and sisters whether consanguine or uterine-1/6.

(2) When not-1/3

Grandmother - However high when not excluded by a nearer true female ancestor-1/6.

Full sisters

(I) When only one and no son or son's son, true grandfather, daughter, son's daughter or brother-1/2.

(2) When two or more and no such excluders-2/3.

Consanguine sisters

(1) When only one and no excluder as above - 1/2.

(2) When one, and co-existing with one full sister-1/6.

(3) When two or more and no such excluder-1/3.

Uterine sisters - Get the same share as uterine brothers - 1/6.

The sharers are 12 in numbers, of these those are 6 who inherit under certain circumstances becomes
residuaries; namely the father, the true grand father, the daughter, the son’s daughter, the full sister and
the uterine sister.
 PRINCIPLES

• The nearer in degree excludes the remoter

• Among claimants in the same degree, those connected with the deceased
through sharers or Residuary are preferred to those connected through distant
kindred.

• If there are claimants on the Paternal side as well as maternal side, 2/3rd to the
paternal side and 1/3rd to the maternal side and then divide the portion assigned
to the paternal side among ancestors of the father and the portion assigned to
the maternal side among the ancestors of the mother
A Sunni Muslim dies leaving behind his (a) father, (b) father’s father, (c) mother, (d) mother’s mother, (e) two
daughters and (f) son’s daughter. The allotment of their respective shares would be as under:

a. Father 1/6 (because there is a child, daughter)

b. Father’s father excluded by father

c. Mother 1/6 (because there are children i.e., daughters)

d. Mother’s mother excluded by mother two daughters 2/3

e. Son’s daughter excluded by two daughters

After allotment of the respective shares to each of them the sum total of the shares is 1/6 + 1/6 + 2/3 = 6/6 =1.
Thus, we find that the total property has been exhausted. It is significant to note that heritable property is
taken to be one (i.e. suppose the property is one).
 Asabah or Residuaries
If there be no residuary, the residue returns to the sharers by consanguinity in proportion to their shares.

This class of heirs is called asaba or residuaries because they take the residue after such of the sharers as
are not excluded have been satisfied. They are divided into three classes:

(1) Residuaries in their own right;

(2) Residuaries in another’s right, and

(3) Residuaries together with another.

Residuaries in their own right

To this class belong all male relations in the chain of whole relationship, no female enters. They are
divided into four subclasses:

(1) Parts of the deceased, i.e. his sons and grandsons howsoever low.

(2) His roots i.e. the ascendants, his father and true grandfather, how high soever.
(3) The offspring of his father viz. full brothers and consanguine brothers and their lineal
male descendants.

Receiving another's rights

Residuaries in another's right are those females who as sharers are entitled to one-half or
two-thirds and who become residuaries if they co-exist with their brothers.

For example, if the heirs of a deceased person are his widow, brother and sister, the
widow will get one-fourth, and of the remaining three-fourths the brother will get two
portions and the sister one portion as residuaries.

Residuary together with another is a female heir who becomes residuary because of her
co-existing with another female heir, for instance, where there is a sister with a daughter.
 Distant kindred
The next class of heirs are known as Dhauil-arham or distant kindred. They include the relations who are
neither sharers not residuary; they inherit only if there are no sharers or residuary. Shafi'is and Malikis do
not treat them as heirs at all. The distant kindred are divided into four subclasses:

(1) The offspring of the deceased:

the children of daughters and their descendants

The children of son's daughters and their descendants howsoever low.

(2) The root of the deceased or his ascendants

Male ascendants however remote, in whose line of relations to the deceased there occurs female and
who are therefore called false grandfathers. e. g. [a] deceased's mother's father [or a] father's mother's
father.

Female ancestors technically called false grandmothers.

(3) The offspring of his parents viz. the daughters of full brothers and of full brother's sons,
sister's children.

(4) The offspring of grandparents and other ascendants however remote.

daughter of half paternal uncles by the father.

paternal aunts, full consanguine or uterine and their children.

daughters of full paternal uncles and their sons.

maternal uncles and aunts and their children.

paternal uncles by the mother.

The general order of succession is according to their classification, the first class occupying the
first and so on. Among the individuals of the various classes, succession is regulated by proximity
to the deceased, the nearer in degree always excluding the more remote.
 General Rules Of Succession Among Distant Kindred

1. The first class excludes the second, and so on.

2. The near in degree excludes the remoter one.

EG: A daughter’s child excludes a son’s daughter’s children.

3. As amongst the members of the same class and of the same degree, the children
of sharers and residuaries are preferred to those of the distant kindred.

Eg: A son’s daughter’s children are preferred to the daughter’s grandchildren.

4. Subject to the above rules, heirs of whole blood are preferred to consanguine
heirs, and a male takes double the share of a female.
 Doctrine of Increase (Aul)

After allotment of the respective shares to Sharers, if the sum total exceeds unity,
the doctrine of increase (Aul) is applied. As discussed in the preceding lines, in the
fraction of the aggregate of shares, the numerator denotes total number of shares
and the denominator denotes the pieces of heritable property.

For example, if the aggregate of the shares is 13/12 then, 13 represents the
number of shares and 12 represents fragments or pieces of the property. In this
case, therefore, the number of shares exceeds the number of fragments of
property. In other words, the fragments or pieces of the property are less than the
number of shares.
• Keeping the numerator intact, the denominator is increased in such a
manner that the denominator (i.e. total number of fragments of property)
becomes equal to the numerator (total number of shares). Thus, instead of
altering the respective shares which are of divine origin, the pieces of
heritable property are enhanced. By this process the aggregate of the
shares is made unity.
 Doctrine of Return (Radd)
If there is a residue left after satisfying the claims of Sharers, but there is no Residuary,
the residue reverts to the sharers in proportion to their shares. This right of reverted is
technically called ‘Return’ or Radd.’ he residue is added to the shares of the respective
Sharers according to following rules:
1 The residue is added to the shares of each heir in proportion of their own share.
2 The husband and widow do not participate in return. If, among the legal heirs of a
porosities, there is a husband or widow the surplus is not added to their shares. That is to
say, the residue returns to all the heirs (in proportion of their own shares) except the
husband or widow.
However, if widow (or husband) is the sole surviving heir of a Sunni Muslim, she inherits
the whole property.
 SHIA LAW OF INHERITANCE

It is similar to Sunni law but Shia law recognizes Sharers and Residuary. Unlike Sunni laws,
Grandparents and son’s daughter are not regarded as Sharers.

Residuaries do not play significant role in Shia scheme and Shia law does not recognize
Distant Kindred.

Legal heirs are classified in three main classes in addition to Sharers and Residuaries.

Rule of Aul is not resorted to in Shia law

Principle of Representation is applied for distribution among distant layers of relatives.

Shia law is more gender sensitive than Sunni law

The most authoritative book of the Shia law is Sharaya-ul-Islam.
Division of heirs- Shias divide heirs into two groups – heirs by consanguinity and heirs by
affinity;
Three classes of heirs of consanguinity:
I – a. parents
b. children and other lineal descendants
II – a. grand parents, (true as well as false)
b. brothers and sisters and their descendants
III- a. paternal and b. maternal uncles and aunts of the deceased and their parents and
grandparents and their descendants
The heirs by affinity are husband and wife.
• Husband: 1/4th and in absence of lineal descendant increased to ½;

• Wife: 1/8th jointly and in absence of lineal descendants to ¼. (only out of movables)

• Father: 1/6th

• Mother: 1/6th and 1/3rd if no children;

• Son, inherits as residuary

• Daughter: 1/2, if two or more collectively take 2/3rd;

• Uterine brother or uterine sister: 1/6th and collectively 1/3rd;

• Full sister: 1/2 and collectively 2/3rd ;

• Consanguine sister: ½ and collectively 1/3rd.

• According to Sunni law, legal heirs are divided into three classes, i.e. the sharers, the
residuaries and the distant kindred, while Shia law recognizes only two classes, i.e. the
sharers and the residuaries.

• There is no concept of distant kindred in Shia law, most of those who are regarded as
distant kindred in Sunni law relate to a deceased from his female descendants (e.g.
daughter’s children, son’s daughter’s children) or other female relatives (e.g. mother’s
father, mother’s brother and sister, sister’s children etc.).

• As Shia law places these females and their ascendants and descendants in above
mentioned classes along with their male counterparts, there remains no need to have
another class of legal heirs like the distant kindred in Shia scheme of inheritance.
• Another aspect we take into account while discussing Sunni law was
distinguishing paternal and maternal grandfathers into true and false
grandfathers.

• As is apparent from the above classification, there is no such distinction in

Shia law.
‘A’ a Muslim dies leaving a daughter’s son, a father’s mother, a full brother, divide
the shares.

In Hanafi law the father’s mother as a sharer will take 1/6th, and the full brother
as a residuary will take 5/6th and the daughter’s son, being a DK will be entirely
excluded from inheritance;

In Shia law, the daughter’s son, being an heir of the first class, will succeed to
the whole of inheritance in preference to the father’s mother and the full
brother, both of whom belong to the second class of heirs.
A’ a Muslim dies leaving a brother’s daughter and a full paternal uncle;

In Hanafi law the full paternal uncle, being a residuary, will take the whole of
the property to the exclusion of the brother’s daughter who is a DK;

In Shia law, the brother’s daughter, being a heir of the 2nd class, will succeed
in preference to the full paternal uncle who belongs to the 3rd class of heirs.