1. INTRODUCTION:

Quran did' not abrogate all the pre-Islamic laws of inheritance but amended them to the extent it was deemed necessary. So it can be said that the Muslim Law of inheritance consists primarily of (I) the rules relating thereto laid down in the Quran or by the Prophet (peace be upon him) in his teaching; and (2) the customs and usages prevailing amongst the Arab tribes in and around Mecca and Medina at the time of the Prophet (peace be upon him). Insofar as they ware not altered or abrogated by the said rules and teachings. Therefore, for the purpose of rules of inheritance, the Holy Quran is to be liked to an amending act rather than an exhaustive code.

The Sunni and Shia jurists worked separately to carve out their own schemes of inheritance. The basis of both the schemes is the same, that is Holy Quran and Hadith on the one hand and unamended pre-lslamic customs of inheritance in Arabia on the other. Therefore, the general principles of both the schemes of inheritance are nearly the same, and can be discussed together. The differences in the approach -of the jurists of the two season various rules of inheritance could be pointed out wherever they occur. However, the general principles of Islamic Law of inheritance followed by both the sects are discussed under the following headings.

1. APPLICABLE LAW:

The property of a deceased Muslim is to be distributed according to the law of the sect to which he belonged at the time of his death. The sect to which the persons claiming the property as his heirs belong is immaterial. If a non-Muslim becomes a convert to Islam and dies as Muslim, the distribution of his estate will take place according to Muslim Law of the sect to which he became a convert. In determining the heir or heirs to the extent of a deceased who had renounced Hindu religion and embraced the Shia faith, recourse must had to the Shia law of inheritance.

1. HERITABLE PROPERTY:

It is a general principle that all property moveable or immovable, that a Muslim leaves behind after payment of funeral charges, debts and legacies, if any, is subject to devolution among his heir or heirs. There is no distinction between moveable and immovable property, or between ancestral and self-acquired property. Sunni law treats this principle strictly. Shia law, however, while adhering to the principle In general, recognizes certain exceptions.

(i)       While a widow who is not childless, inherits a share of her husband’s land. Childless widow is not entitled under Shia law to a share in the land belonging to her husband, A childless widow is entitled to a share in the value of such buildings and trees and any sum payable 'by way of rent' charges. She, however, is entitled to a share in the movable property of her husband. But the question arises whether a widow, who has no child at the time of her husband’s death but had born a child who was dead, is disqualified from inheriting the land. There is difference of opinion on this question. According to Baillie’s Digest of Mohammadan Law, such a widow would be entitled to inherit, but Ameer Ali has stated a contrary' view. However, a childless widow under the Shia law is entitled to a share in the proceeds a sale of the building of her deceased husband though she herself has no power of sale of ownership of the building to anyone.

(ii)      The eldest son if he is of sound mind, is entitled to succeed exclusively to the wearing apparel of the father, and to his Holy Quran, sword and ring provided the deceased has left property besides those articles.

1. BIRTH RIGHT:

Islamic law does not recognize the birth right to inherit. 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 to any interest in the property to which he would succeed as an heir if he survived the ancestor. The heir- apparent’s right to succeed is nothing more than a mere chance to succeed, which may be defeated in a number of ways, for instance, a transfer by the owner of his entire estate before his death. An heir apparent cannot make claim in respect of the property of his living ancestor. A person is entitled to dispose of his property the way he pleases, that is by sale, mortgage or gift etc. An heir apparent has no control over his ancestor’s actions and has no standing to challenge any transaction made by him (the ancestor) during his life-time.

1. VESTED INHERITANCE:

A vested inheritance is the share which vests in an heir at the moment of the ancestor’s death. This right is not lost by the death of any heir before the actual distribution of the property and passes to his own heirs at the time of the death. From the moment of the death of propositus the property devolves on his heirs in specific shares and the heirs acquire vested interest in it. There is no abeyance of the property under Islamic Law.

1.  PRIMOGENITURE:

Primogeniture is the rule by which the eldest son succeeds to the entire property of his father to the exclusion of other sons and daughters. This is the absolute rule of primogeniture but a partial rule of primogeniture has also been applied in certain legal systems at various points in time. Under the partial rule of primogeniture, the eldest son does not inherit the entire property of his father but gets some advantage over his brothers and sister. Islamic Law does not recognize the rule of primogeniture. There is one minor exception to this. The Shia law, the Shafi and Maliki Schools of Sunni law do recognize the exclusive right of the eldest son to certain articles of the father, such as his wearing apparel, Holy Quran, ring and sword provided the eldest son is of sound mind and the deceased has left property other-than these articles,

1. SEPARATE DEVOLUTION ON HEIRS:

 The estate of a deceased Muslim devolves on each of his heirs separately and the heirs entitled to hold property as tenants in common, each having a separate share in the whole property. The property of a deceased Muslim devolves on his heirs in specific shares with the interest of each heir being separate and distinct. Similarly, each heir is liable for the debts of the deceased proportionate to his share of the estate. A joint family under the Islamic law implies only a group of individuals living and messing together and is not a legal entity. The principle of survivorship is not known to Muslim law. The heirs-of the deceased take their shares as if they were tenants in common and not joint tenants with rights of survivorship. Their position is simply of separate co-sharers.

1. PRINCIPLE OF REPRESENTATION:

Islamic Law does not recognize the principle of representation. -For example, if a Muslim had two sons and one of them died during his life-time leaving behind several children, those children cannot represent their father on the death of their grandfather so as to inherit their father’s share. This non- recognition of the principle of representation is due to the cardinal principle of Islamic Law of inheritance, which is that the nearer in degree of relationship to the deceased excluded the more remote. So the entire property of a deceased Muslim devolves on his heirs at the time of his death.

For the limited purpose of calculating the share of each heir, the Shia law accepts the principle of representation as a cardinal principle throughout. According to that principle the descendants of a deceased, son, if they are there, take the portion which he, if living would have taken and in that sense they represent the deceased son. In the same limited sense, the descendant of a deceased daughter represent the daughter and similarly, the principle is applicable to the descendants of deceased brothers, sisters, uncles or aunts, etc. The Shia jurisprudence looks upon children, parents, brothers and sisters as the principle heirs, or roots of the system of inheritance. Other relatives are subsidiary heirs or branches and their derivate rights are determined by the standard applied to the root or principal heir through whom they trace their connection with the propositus.

1. ALLOCATION OF SHARES BETWEEN MALES AND FEMALES:

According to Islamic Law of inheritance, a male takes double the portion of a female. The rule applies to lineal descendants, and all relatives on the paternal side with the exception of uterines. The only exception is the relatives connected through the mother only, like uterine brothers and sisters, when inheriting from each other, take equally regardless of sex. However, a female inherits half of what a male inherits in the same degree of relationship from the deceased, still she becomes absolute owner of the portion of property that' she inherits. There are absolutely no disabilities imposed upon her- right of ownership, possession and administration of the property that she inherits.

1. RULE OF PROPINQUITY:

In determining the preferential claims of the heirs, the Shias adopt the rule of consanguinity, and ignore those of agency, that is they prefer the nearest kinsmen to those more remote. The distinction of agnates and cognates is fully recognized by the Sunnis, who have distinctly classed the cognates as “Distant Kindred”. The rule that nearer in degree excludes the more remote is applied to the kindred of the same class only. The rule of propinquity may apply between the members of class, but it does not-apply as between class. Where therefore, a person is residuary of the propositus he does not lose his right as such residuary merely because he also had relationship with the propositus through another person. This theory of propinquity or nearness in blood is fully recognized by the Shias but partially by the Sunnis.

1.           PRESUMPTION IN FAVOUR OF A MUSLIM CHILD:

When either of the parents is a Muslim, Islamic Law presumes the child to be a Muslim (Until it is able to make a choice, in other words, when it attains majority).