Property rights and the current law

It is essential for people to understand how they want their inheritance to be distributed
Property rights and the current law
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The expression “Secular” was incorporated in the preamble of The Constitution of India by way of the 42nd Amendment in 1976, though the Hon’ble Supreme Court of India in S.R Bommai case was pleased to hold that India was secular since the formation of the Republic. One school of thought strongly advocates that expression Secular should culminate in Uniform Civil Code, i.e., same laws for all countrymen irrespective of their religion, and hence achieving equality before Law, and then India would be Secular in true sense. The contrary school of thought emphasizes that it is the beauty of our Constitution that safeguards Personal Laws and that is what is the quintessence of word Secular; this school believes the expression Secular shall be read along with Article 25, Article 246, and other complementing Articles when interpreting Secular and Personal Laws.

As far as personal laws are concerned, all personal laws in India are codified except Muslim Law, though the Shariat Act 1937 sprinkles Muslim Law with characteristics of statutory Law but largely remains an embodiment of customary practices. Muslim Law and its customary practices often attract criticism that due to ‘absence of codification’ it becomes static and not dynamic, as periodical amendments, unlike codified laws, do not revive these laws. However, criticism is quickly countered with the contention that it is this fundamental nature of Muslim Laws, which has preserved Muslim Personal Laws by keeping amendments at bay usually proposed by a Parliamentarian who gets elected by majority vote on local or national issues and not on their intellectual ability or expertise of the subject, unlike Judges.

As far as succession and inheritance are concerned, the property rights under the Muslim Law can be understood with an isosceles triangle of Gift, Testamentary, and Non-Testamentary Succession. Whereas Testamentary and Non-Testamentary limit the share, each person will get, conversely to Gift, which allows bequeathing entire property. As far as the succession of property in India, apart from personal laws, is concerned, the two leading legislations governing the issue are the Indian Succession Act, 1925, and the Transfer of Property Act, 1882. However, the former is wholly not applicable to Muslims, and the latter selectively becomes dormant in the presence of Personal laws.

Testamentary Succession and what is the source?

Testamentary Succession is bequeathing of property by the owner through a “Will” or “Vasiayatnama.” In the Islamic Jurisprudence, the Law of Wills finds its mention in Hadith wherein Saad ibn Abi Waqas became one of the wealthiest Muslims. It was during his illness in a Farewell Pilgrimage, when he was accompanying the Prophet SAW, who when visited him was put forth with a query by Sa’d who asked him SAW, “’O Messenger of Allah, I own a lot of money, and there is nobody to inherit from me except one daughter. May I contribute two-thirds of my money as alms?’ The Prophet SAW said, ‘No.’ Then he said, ‘Then half of it?’ The Prophet SAW said, ‘No.’ Then he said, ‘Then a third?’ The Prophet SAW said, ‘Yes, and the third is too much. To leave your heirs wealthy is better than to leave them having to be dependent on someone. If you spend any money in the cause of Allah, you’ll be rewarded for it, even the bite you put in your wife’s mouth.”

Hence, the precedent that a person could not make a Will in respect of his property more than the extent of 1/3 of the property, and through centuries, the precedent has not been disturbed, and the logic behind was threefold (i) Divine Law of Inheritance cannot be disturbed (ii) Legal Heirs cannot be taken away from their right of inheritance (iii) keeping at bay the practice of favoritism and prejudice to keep legal heirs out of court and away from jealously. From precedent, exceptions were carved, one being bequest in favor of heir amongst heirs, prohibited but does not become void; such as in cases of Wills in favor of heirs, whereas the general rule was Muslim cannot execute a Will in favor of heirs to avoid favoritism.

Exception; Will prepared during the lifetime of a person takes effect after the death of the executor, hence in cases wherein Will executed in favor of one legal heir barring rest (or any other arithmetical distribution), and after the death of the executor, remaining heirs also give their consent to the Will; it becomes valid.

As far as a Will made in favor of a stranger, it can not go beyond the bequeathal third that is 1/3 of the entire property. Again, knowingly or unknowingly, Will made bequeathing more than 1/3 of the property in such cases; also, the Will does not become void but can be validated upon the consent of the Legal heirs, but the consent shall come after the death of the Will maker. The issue of Muslim Will came before various courts at various juncture though the fundamental position was clear that a Muslim cannot by way of Will dispose of more than 1/3 of his property, yet some aspects required clarification which came by way of High Courts and Hon’ble Supreme Court judgments. The Judgments, which on date stands as the Law of the Land. Also, an embargo is that a person cannot create multiple Wills of 1/3 each, and the numbers of Will bequeathing property cannot go beyond the share of 1/3.

One issue amongst many that kept reoccurring before the Courts was that of a Written/Oral/Registered/Unregistered Will or Gift Deed, but after series of Judgments, what culminates is that Oral wills are permissible in Muslims but has to be in the presence of witnesses and has to be proved, As far as written Will is concerned the same are valid even if they are unregistered. The Hon’ble Supreme Court in Hafeez Bibi & Ors. Vs. Shaikh Farid also examined the validity of an oral/unregistered/written Gift deed under Muslims, upheld the customary position, and ruled out mandatory registration.

The prescribed requirements of Will are enumerated under the Indian Succession Act, but Section 58 of the Act oust the applicability of the said chapter governing Wills and explicitly states that the said chapter shall not apply to testamentary Succession to the property of any Muslim. Hence Muslim Will can be unregistered and oral sometimes. However, in contemporary times, it is preferred to execute a document in compliance with all legal formalities, even state by way of legislations such as J&K Registration Act proposes registration for testamentary documents.

Non-Testamentary Succession; when a person dies without any WILL.

When a person dies intestate, without any Will (without bequeathing property by Will or declaration), is a non-testamentary succession. Even legal luminaries often fear non-testamentary Succession, and many sideline themselves from this area of practice; maybe it is the non-codification, which makes the less explored law of inheritance a deep dark cave which many not enter by choice fearing its depth or the arithmetical fluctuations which impact the distribution of Sharers by the presence of Son (Descendants).

Nevertheless, many believe Muslim Law is quite simple as the Law of Inheritance is clearly defined by mentioning the shares, which each person will inherit. In India, Muslim Succession is governed by Muslim Personal Law (Shariat) Application Act, 1937, which allows inheritance, vide customary practices. However, before the property can be mutated or divided, there are few duties to be complied by legal heirs, which are (i) Pay funeral and burial expenses (ii) Paying debts of the deceased, (iii) Determine the value/Will of the deceased (iv) Distribute the remainder of estate and property to the relatives of the deceased according to Shariat Law.

In other religions wherein inheritance right is created at the birth of entity, contrary to this in Muslims, the right to inheritance emanates on the successors at the predecessor’s death. To understand this concept of the right of inheritance, let us take an example where the Father (C) has two sons A and B., while the Father (C) is alive B dies (leaving behind two sons X & Y), in this case, because B never inherited from his Father C and because B would have only inherited upon the death of the Father C. However, B’s death before his Father (C) rules him and his two sons out of the right to inheritance, establishing the principle that In Muslim Law, the right of inheritance accrues the predecessor’s death and not at birth, Doctrine of Representation.

As far as heirs are concerned, Muslim Law recognizes two types of heirs, Sharers, and Residuaries. Sharers being the ones whose share comes by way of entitlement in the deceased’s property ex. Spouse, Son, and Daughter and Residuaries whose share accrues only in the absence of the Sharers, ex. Agnatic.


The presence of a Descendant, i.e., a Son or Sons, centric whom, the share gets calculated, presence or absence of a Son directly and substantially impacts how the property would get distributed amongst the surviving members or Sharers. Sharers are never excluded, but the proportion of share entirely depends upon the number, presence, and absence of Son as Primary Descendants.

The share taken by each sharer will vary in certain conditions. For example, if the deceased had left behind a son(s) and daughter(s), then the daughters will get half of what the son will get and one-fourth of property share in the absence of a Son(s). Further, a wife takes 1/4th of the share if the couple has no descendants and otherwise a one-eighth. A sole daughter takes a half share. Where the deceased has left behind more than one daughter, all daughters jointly take two-thirds.

Rights of females:

Islam doesn’t not create any distinction between the rights of men and women. On the death of their ancestor, nothing can prevent both girl and boy child to become the legal heirs of the inheritable property. However, the quantum of female’s share is half of that of the male heirs. The reason behind this is that under the Muslim Law, a female shall, upon marriage, receive Mehr and maintenance from her husband, whereas males will have only the property of the ancestors for inheritance. Also, males have the duty of maintaining wife and children.

Widow’s right to Succession:

A Kashmir’s local worry is its widows, but under Muslim Law, no widow gets excluded from the succession. A childless Muslim widow is entitled to one-fourth of the deceased husband’s property after meeting his funeral and legal expenses and debts. However, a widow with children or grandchildren is entitled to one-eighth of the deceased husband’s property. If a Muslim man marries during an illness and subsequently dies of that medical condition without brief recovery or consummating the marriage, his widow has no right of inheritance. However, if her ailing husband divorces her and afterward dies from that illness, the widow’s right to a share of inheritance continues until she remarries.

What is Gift, and is it allowed on the property?

This area reflects the impact of modernization and legal practices to circumvent customary precedents; nowadays, many modern families worldwide use this modus to keep the property away from any impending litigation, which may arise after the owner’s death. Furthermore, by way of a Gift Deed, the property is gifted to the heirs in whatever proportion the holder deems fit and ensures that the division of share does not get impacted by rules of non-testamentary Succession.

Persons who wish to transfer their property in the name of their daughters use mostly this method as the rights of women in father’s property has been quite a perplexing issue as their share remains half of son’s share; absence of son makes daughters eligible for half the share. The practice of Gift Deed is a safe, seamless, and tested method to keep the property away from any disputes and concretes the daughter’s entire share in properties or inheritance where there are no sons. Any such Gift Deed shall be made and executed during a person’s lifetime because if the same is made but not executed, it shall become void at the maker’s death and following which rules of non-testamentary succession will govern the inheritance.

The Practice of Gift also described as Hiba is the unequal side of an isosceles triangle, which does not limit the extent of the property, which can be voluntarily transferred to heirs or any other person. Therefore, by executing a Gift Deed, a person can gift his entire property, including movable and immovable properties. The Privy Council in “Mohammad Abdul Ghani and Anr. v. Fakhr Jahan Begam and Ors” applied the following requirements for a valid Hiba under Muslim law (i) manifestation of the wish to give on the part of the donor; (ii) the acceptance of the donee, either implied or expressly; and (iii) the taking of the possession of the subject matter of the Gift by the donee, either actually or constructively. Hence, a gift is complete, valid, and irrevocable upon compliance with the aforementioned conditions.

It is not expected of the general public to know the Law and its nitty-gritty; what is essential for people is to understand how they want their inheritance to be like; a legal consultation with a local attorney can be helpful to understand various aspects and accordingly decide the future course of action.

Note: The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about specific circumstances.

The Authors Viqas Malik & Romanian Muneeb are Lawyers at the J&K High Court.

Disclaimer: The views and opinions expressed in this article are the personal opinions of the author. The facts, analysis, assumptions and perspective appearing in the article do not reflect the views of GK.

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