Article – Law of partition of property in India – Muslim Law Perspective

INTRODUCTION

The Law of Partition under Muslim Law is based on the Holy Quran, Hadith (a record of the words, actions, and the silent approval of the Prophet Muhammad) IJMA (Consensus of the learned men of the community over the decision over a particular subject matter) and Qiyas (methods of juristic reasoning). It is for this reason that various schools of Muslim Law arose with slight differences in their interpretation of the Holy Quran, though broadly the basic principles are the same. There are two Schools of thought i.e., ‘Shia’ and ‘Sunni’ School of Muslim Law, which are further categorised into various other schools. In India, the majority of the Muslims follows Hanafi School of Muslim Law(which is one of the four School of Sunni School). In the present article, endeavour is to deal with Law of Partition as enunciated in Hanafi School of Muslim Law.

 A Muslim’s right to Will his property is subject to limitation and a Muslim cannot ‘Will’ more than one-third (1/3) of his total property. However, the ‘Will’ of property more than 1/3^rdis not void if ratified by the legal heirs(Sharers) and if the same is not ratified by any of the legal heir, then the ‘Will’ is not valid only to the extent of share of such ‘Sharer’.

A Muslim,either Man or Woman is deemed to be an absolute owner of the properties owned by him, either inherited or his self acquired properties. The succession of the properties of a deceased Muslim opens only upon his death.

Males and females have equal rights of Inheritance. Upon the death of a Muslim, if his heirs include also females then, male and female heirs inherit the properties simultaneously. Males have no preferential right of inheritance over the females, but the share of a male is double the share of a female. In other words, although there is no difference between male and female heir in so far as their respective rights of inheritance is concerned but generally the quantum of property inherited by a female heir is half of the property given to a male of equal status (degree). The principle that normally the share of a male is double the share of a female has some justification. Under Muslim law, while a female heir gets (or hopes to get in future) an additional money or property as her Mehr and maintenance from her husband, her male counterpart gets none of the two benefits. Moreover, the male heir is primarily liable for the maintenance of his children whereas, the female heir may have this liability only in an extraordinary case.

The doctrine of representation is not recognised which means that if father dies during the lifetime of grandfather, then son does not inherit from his grandfather, on his death, but this law will not apply if the grandfather does not have any son or daughter living. In the matter of Abdul Subhan vs Khyroonibi^[1]the Division Bench of the Karnataka High Court upholding the principles as enunciated in the matter of (MoollaCassim v. Molla Abdul)^[2] reiterated that in Mohamedan Law, if any of the children of a man dies before the opening of the succession to his Estate, leaving children behind, these grandchildren are entirely excluded from the inheritance by their uncles and aunts.

MANNER OF DISTRIBUTION

The manner distribution of shares under Muslim law are of two types. It can be either per-capita or per-strip distribution. Per – Capita distribution method is used in the ‘Sunni Law’ and Per – Strip distribution method is used in ‘Shia Law’. According to Per – Capita 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. For example if A had two sons B & C, who had already pre-deceased their father and B had two sons E & F and C has three sons G, H & I, then on death of A(who dies leaving behind Rs.10,000/-), all his grandchildren shall inherit to the properties of A equally i.e., Rs.2,000/- each. However under Shia law E & F will inherit Rs.5,000/- i.e., R.2,500/- each and G, H & I will inherit Rs.5,000/- together.

Broadly speaking under Hanafi School of Muslim Law there are four categories of heirs:

(a)  The shares or Quranic Heirs
(b)  The residuaries or Agnatic Heirs
(c)   The distant Kindred; and
(d)  The State

(A)      SHARERS:

Sharers are those categories of legal heirs who are entitled to get a prescribed share from the heritable property. The Sharers and their respective shares in the property of a deceased are given in the Quran. The Sharers are, therefore, also called as Quranic heirs. In the distribution of property, the Sharers get preference over the other class of heirs, therefore, first of all the respective share is allotted to each Sharer. It may be noted that Sharers are those heirs whose respective shares are given in Quran; therefore, their shares cannot be altered by any human effort.

Daughters in the presence of a son become a residuary and inherit half of what the share of a son is. For Example, if A dies leaving behind two daughters and two sons, then the sons get 2/6 each and daughters inherit 1/6 each.

(B) RESIDUARIES OR AGNATIC HEIRS:

 Residuaries are those heirs who inherit only the residue of the property after allotment of respective shares to the Sharers. Obviously, the Residuaries have no specific share of their own. After giving the property to the Sharers in their fixed shares, if there remains some property then that ‘remaining property’ (residue) is available to the Residuaries.

The residue may differ from case to case. If there are no Sharers, the whole is inherited by the Residuaries. Residuary heirs are also termed as Agnatic heirs because they inherit through male relations.Residuary sharers 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.

(C)      DISTANT KINDRED:

The next class of heirs are known as Dhauil-arham or Distant Kindred. They include the relations who are neither Sharers nor Residuaries; they inherit only if there are no Sharers or Residuaries. The distant kindred are divided into four sub-classes:

(1) The offspring of the deceased viz;

(a) the children of daughters and their descendants
(b) The children of son’s daughters and their descendants howsoever low.

(2) The root of the deceased or his ascendants;

(a) Male ascendants however remote, in whose line of relations to the deceased there occurs female and who are therefore called false grandfathers. Example [a] deceased’s mother’s father [or a] father’s mother’s father.
(b) 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.

(a) daughter of half paternal uncles by the father.
(b) paternal aunts, full consanguine or uterine and their children.
(c) daughters of full paternal uncles and their sons.
(d) maternal uncles and aunts and their children.
(e) paternal uncles by the mother.

(D) STATE:

If the deceased does not leave behind any legal heir, then the property left behind by him/ her is inherited by the State.

DOCTRINE OF EXCLUSION

In order to regulate the number of relations who might inherit together, the doctrine of ‘Hujab’ or exclusion is applied.  The son, father, husband, daughter, mother and the wife are never totally excluded. Exclusion is based on two principles.

• A person who is related to the deceased through another is excluded by the latter, for example, the father excludes the grandfather, the son exclude the grandson so as to give preference to the proximity of degree, for instance, a son excludes another son’s son. There is an exception to this rule, namely that the mother does not exclude brothers and sisters.
• The closest in blood excludes the others. A relation of full blood always inherits in preference to a relation by the father only. Thus a brother excludes a consanguine brother or sister. This rule is subject to the exception that uterine relations are not excluded on that ground.

Exclusion may sometimes be partial. There is also a general rule that when the deceased leaves behind a male and a female heir of the same class and degree, the latter will get half of the former.

SCHEME OF DISTRIBUTION

In the distribution of property among legal heirs of a Hanafi Sunni Muslim, the following scheme is followed. First of all, it is ascertained as to who are the Sharers (Quranic heirs) of the deceased. After ascertaining the Sharers, their respective shares, which are already fixed for them, is allotted to each of them. If the whole property exhausts after distribution of the shares among each of them, the process of distribution does not proceed further.

But, if there still remains some property, then the second step is to distribute the “remaining property” (residue) among the Residuaries who constitute Class II of legal heirs. However, where there are no Sharers at all, the whole property is inherited directly by the Residuaries. If the deceased ancestor has neither any Sharer nor any Residuary then, in the third instance, the property is distributed among the Distant Kindreds.

It is to be noted that a Distant Kindred cannot inherit in presence of any heir belonging to the class of Sharers or Residuaries. Where a propositus has no heir belonging to any of the three principal classes (although such cases are rare) the property devolves directly upon the successive subsidiary heirs, one by one in the order of priority.

But, if there is none from among the above mentioned classes of heirs, the properties of the deceased are ultimately inherited by the State. State is the ultimate heir of every propositus.

While distributing property under Muslim Law it sometime happens that the share allotted to the legal heirs is either falls short of unity of exceeds unity. To overcome such situation there are two principles of Muslim law which are as below:

• Doctrine of Aul (Increase); and
• Doctrine of Radd (Return)

DOCTRINE OF AUL (INCREASE)

After allotment of the respective shares to Sharers, if the sum total exceeds unity, the doctrine of increase (Aul) is applied and the shares of all the sharers are reduced proportionately. 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.

DOCTRINE OF RADD (RETURN):

Where the sum total of shares is less than unity, the doctrine of return (Radd)is applicable. As discussed earlier, in the fraction of the sum total of shares, the numerator represents as the’ total number of shares and denominator denotes the number of pieces of property.Therefore, where the sum total of all the shares comes out to be less than unity, it implies that number of shares is less than the number of fragments of property.

This situation indicates that after allotting the respective shares to the Sharers there still remains some (fragments of) property and there are no Residuary or other heirs to get this residue. In such cases, the doctrine of return (Radd) is applied under which the excess property is returned back and is added to the respective shares of the legal heirs, in proportion of their own shares.

CONCLUSION

Thus clearly, though a Muslim has been given ample power under Law to deal with his properties as he deems fit, however after his demise the properties left behind by him is divided as per the Islamic Law of Inheritance. The right of the legal heirs to the properties left behind by his ancestor is safeguarded by restricting the right of the ancestor to make a bequest which is restricted to maximum of 1/3^rd of the properties left behind by him, at the time of his demise.