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LATEST TRENDS IN SUCCESSION AMONG HINDUS

­ by P.Tirumala Rao,
Prl. Senior Civil Judge,
Ananthapuramu

1. The Succession is a process by which a person is became

entitled in the property of deceased. The person so becoming
entitled, was called as “successor” and the person from whom he
derives his title or interest was called predecessor. The branch of
Law which deals with the rules and principles governing the claims
and distribution of property among different members of the family
interested in succession is called a “the Law of inheritance” or “Law
of succession”. The law of succession in Hindus may be
testamentary or intestate.

(I) Testamentary Succession :

2. The testamentary succession among Hindus is governed by

Part.VI, consisting Sections 57 to 191 of Indian Succession Act, 1925
and section 30 of Hindu Succession Act, 1956. Section 63 of Indian
Succession Act deals with procedure and rules for execution of
unprivileged Wills. It mandates that Will must be attested by two or
more witnesses, whereas u/s.68 of Indian Evidence act, that a Will
can be proved by examining one of the attesting witnesses.

(II) Intestate Succession among Hindus :

3. Intestate Succession among Hindus shall be governed by Hindu

Succession Act, 1956. Section 6 of the Act deals with the devolution
of interest in coparcenary property. Section 8 of the Act deals with
general rules of succession in case of males. i.e. for devolution of the
separate property of intestate. Sections 14 to 16 deals with the
property own by a Hindu female and general rule of succession order
of succession and manner of distribution among heirs of a female
Hindu.
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(i) Intestate Succession for the separate property of the

Hindu male :

4. Section 8 of Hindu Succession Act deals general rules of

succession in the case of males. The property of a male Hindu dying
intestate shall devolve according to the provisions of this Chapter:-
(a) firstly, upon the heirs specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs

specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the
agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the
deceased.

5. Section 9 of the Act deals with the order of succession among

the heirs in the schedule. Among the heirs specified in the Schedule,
those in class I shall take simultaneously and to the exclusion of all
other heirs; those in the first entry in class II shall be preferred to
those in the second entry; those in the second entry shall be
preferred to those in the third entry; and so on in succession.

6. Section 10 deals with the distribution of the property among

the heirs in the class-1 of the schedule in accordance with the rules.
Under Rule.1, the Intestate's widow or widows, shall take one share,
under Rule.2 the surviving sons and daughters and the mother of the
intestate shall each take one share, under Rule.3 the heirs in the
branch of each predeceased son or each predeceased daughter shall
take between them one share, under Rule.4 the branch of
predeceased son or daughter shall get equal portion.

7. Section 11 of the Act deals with the distribution of property

among the heirs in class-2 of the schedule. The property of an
intestate shall be divided between the heirs specified in any one
entry in class-II of the schedule and that they share equally. Section
12 deals with order of succession among agnates and cognates shall
be determined in accordance with the rule of preference laid down
under Rules 1 to 3.
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(ii) Intestate Succession of separate property of Hindu

female:

8. Sections 14 to 16 of Hindu Succession Act deal with the

succession of property among the heirs of Hindu female.
Under Section 14 of the Act, any property possessed by a
female Hindu, whether acquired before or after the commencement
of this Act, shall be held by her as full owner thereof and not as a
limited owner.
(2) Nothing contained in sub-section (1) shall apply to any property
acquired by way of gift or under a will or any other instrument or
under a decree or order of a civil court or under an award where the
terms of the gift, will or other instrument of the decree, order or
award prescribe a restricted estate in such property.

9. Section 15 of the Act deals with general rules of succession in

case of female Hindus.

(1) The property of a female Hindu dying intestate shall devolve

according to the rules set out in section 16 -

(a) firstly, upon the sons and daughters (including the children of any

predeceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(iii) Intestate Succession of Hindu female acquired from her

parents
(2) Notwithstanding anything contained in sub-section (1) -

(a) any property inherited by a female Hindu from her father or

mother shall devolve, in the absence of any son or daughter of the
deceased (including the children of any predeceased son or
daughter) not upon the other heirs referred to in sub-section (1)
in the order specified therein, but upon the heirs of the father; and
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(iv) Intestate Succession of Hindu female acquired from her

husband

(b) any property inherited by a female Hindu from her husband or

from her father-in-law shall devolve, in the absence of any son or
daughter of the deceased (including the children of any predeceased
son or daughter) not upon the other heirs referred to in sub-section
(1) in the order specified therein, but upon the heirs of the husband.

10. As per Section 16 of the Act, the order of succession among the
heirs referred to in section 15 shall be, and the distribution of the
intestates property among those heirs shall take place according to
the following rules 1 to 3

(v) Intestate Succession among Hindus for coparcenary

property :

11. Section 6 of the Act deals with the devolution of interest in

coparcenary property. Section 6 has been substituted by Act 39 of
2005 w.e.f. 9-9-2005, basing on the 174th Report of the Law
Commission of India on Property Rights of Women and Proposed
Reform under the Hindu Law. This amending Act of 2005 is an
attempt to remove the discrimination as contained in section 6 of the
Hindu Succession Act, 1956 by giving equal rights to daughters in the
Hindu Mitakshara coparcenary property as the sons have.
According to the amending Act of 2005, in a Joint Hindu Family
governed by the Mitakshara Law
 the daughter of a coparcener shall, also by birth become a

coparcener in her own right in the same manner as the son

heir.

 she shall have the same rights in the coparcenary property as

she would have had if she had been a son.

 she shall be subject to the same liabilities and disabilities in

respect of the said coparcenary property as that of a son

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 and any reference to a Hindu Mitakshara coparcenary shall be

deemed to include a reference to a daughter.

 This provision shall not affect or invalidate any disposition or

alienation including partition or testamentary disposition of

property which had taken place before 20th December, 2004.

 Further any property to which female Hindu becomes entitled

by virtue of sub-section (1) provision shall be held by her with

the incidents of coparcenary ownership and shall be regarded,

as property capable of being disposed of by her by will and

other testamentary disposition.

 The provision was also made that where a Hindu dies after the

commencement of The Hindu Succession (Amendment) Act of

2005, his interest in the property of a Joint Hindu Family

governed by the Mitakshara Law, shall devolve by

testamentary or intestate succession under the Act and not by

survivorship, and the coparcenary property shall be deemed to

have been divided as if a partition had taken place.

 Further the daughter is allotted the same share as is allotted

to a son.

 The provision was also made that the share of the

predeceased son or a predeceased daughter as they would

have got, had they been alive at the time of partition, shall be

allotted to the surviving child of such predeceased daughter.

 Further the share of the predeceased son or a predeceased

daughter as such child would have got, had he or she been

alive at the time of the partition, shall be allotted to the child

of such predeceased child of the predeceased son or a

predeceased daughter.
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(III) Salient features of the Hindu Succession (Amendment)

Act, 2005 – Object of the Amending Act 39 of 2005

12. It is proposed to remove the discrimination as contained in

section 6 of the Hindu succession act, 1956 by giving equal rights to
daughter in the Hindu Mitakshara coparcenary property as the sons
have. Section 23 of the Act disentitles a female heirs to ask for
partition in respect of a dwelling house wholly occupied by a joint
family until the male heirs choose to divide their respective shares
therein. It is also proposed to omit the said section so as to remove
the disability on female heirs contained in that section. Likewise
special provisions relating to rights of dwelling house and the
disentitlement rights of widow’s remarrying, respectively omitted
from the Act. The amending Act also in the schedule of the Hindu
Succession (Amendment) Act of 2005 added new heirs viz, son of a
predeceased daughter, son of a pre deceased daughter, daughter of
a pre deceased son.

(i) Introduction of daughters as coparceners:

13. One of the major changes brought in by the amendment is that

in a Hindu joint family, the exclusive prerogative of males to be
coparceners has been changed altogether and the right by birth in
the coparcenary property has been conferred in favour of a daughter
as well. Section 6 (2) makes it very clear that a female Hindu would
be entitled to hold property with the incidents of coparcenary
ownership and shall be regarded as property capable of being
disposed of by her testamentary disposition.

(ii) Retention of the concept of notional partition :-

14. The amendment retains the concept of notional partition but

modified its application. Prior to this amendment, notional partition
was effected only if the undivided male coparcener had died leaving
behind any of the eight class I female heirs or the son of a
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predeceased daughter and did not apply generally in every case of

death of a male coparcener. The present amendment makes
application of notional partition in all cases of intestacies. Section 6
(3) states:

15. From the language of the section, two things are clear. First,
the doctrine of survivorship stands abolished in case of male
coparceners, and secondly, in all cases where a Hindu male dies, his
interest in the Mitakshara coparcenary would be ascertained with the
help of a deemed partition or a notional partition.

(iii) Calculation of shares while affecting a notional

partition :-

16. The present Act provides in detail the calculation of shares

while affecting a notional partition. Section 6 (3) provides.

(a) The daughter is allotted the same share as is allotted to the son.

(b) The share of the predeceased son or predeceased daughter, as

they would have got had they been alive at the time of the
partition, shall be allotted to the surviving child of such
predeceased son or of such predeceased daughter and

(c) The share of the predeceased child of a predeceased son or of a

predeceased daughter as such child would have got had he or
she been alive at the time of the partition shall be allotted to him
as if a partition has taken place immediately before this death,
irrespective of whether he was entitled to claim partition or not.

17. At present if a minor child dies, irrespective of the sex, his or

her share would be calculated after effecting notional partition and
such share would go by intestate or testamentary succession, as the
case may be.

(iv) Devolution of coparcenary interest held by a female :-

18. According to the amending Act, a female coparcener would

hold the property with incidents of coparcenary ownership, but does
not specify how the property would devolve if she dies.
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19. Coparcenary interest is acquired by a daughter by birth and

thought it comes from the family of her father, it is not an interest
that she has inherited from her parents. In such a case, it will
obviously be covered by the third category, i.e., any other property
or general property. In such a situation her heirs would be her
husband, her children and children of predeceased children. It would
also mean, that if she dies issueless after seeking partition, her
husband would succeed to her total property including interest that
she had in the coparcenary property. Similarly, if she dies without
seeking partition, then her share would be ascertained by affecting a
notional partition, and the share so calculated would be taken by her
husband as her primary heir.

20. The substance of section 6 (3) (b) and (c), however, lends
support to the argument that secton 15 of the Act does not apply to
the interest of a female coparcener and her interest goes only to her
children. It clearly provides, that where a partition takes place and
one of the child is already dead, bit has left behind a child or child of
a predeceased child, the share of the predeceased son or a
predeceased daughter as they would have got had they been alive at
the time of the partition shall be allotted to the surviving child of
such predeceased son or predeceased daughter. So, if a female
coparcener dies without seeking partition then partition would take
place, her share will be allotted to her surviving children, and the
husband even if alive, will not get any share. This is in contrast to
section 15, where the spouse succeeds along with the children of a
female. A contradiction has been introduced between the first part of
section 6 (3) and sub clause (b) and (c).

(v) Separation of son during the lifetime of father :-

21. Under the old law, if a son sought partition during the lifetime
of father, and separated from the family after taking his share, the
remaining family continuing and maintaining the joint status, on the
death of the father neither such separated son nor any of his heirs,
were eligible to take any claim out of the share of the father.
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(vi) Abolition of pious obligation of son to pay the debts of

father :

22. Under Section 6 (4) – After the commencement of the Hindu

succession Act 2005, no court shall recognize any right to proceed
against a son, grandson or great grandson for the recovery of any
debt due from his father, grandfather or great grandfather solely on
the ground of the pious obligations under the Hindu law of such son,
grandson or great grandson to discharge any such debt :

Provided that in case of any debt contracted before the

commencement of the Hindu Succession Act 2005, nothing contained
in this sub section shall affect

(a) The right of any credit to proceed against the son, grandson or
great grandson as the case may be or

(b) Any alienation made in respect of or in satisfaction of any such

debts and any such right or alienation shall be enforceable under
the rule of pious obligation in the same manner and to the same
extent as it would have been enforceable as if the Hindu
Succession Act, 2005 had not been enacted.

Explanation – for the purposes of clause (a), the expression son,

grandson or great grandson, shall be deemed to refer to the son
grandson or great grandson as the case may be who was born or
adopted prior to the commencement of the Hindu Succession Act,
2005.

23. At present the repayment of debts contracted by any Hindu

would be his personal responsibility and the male descendants would
not be liable to the creditor.

(vii) Applicability of Amending Act to partitions affected

before 20 December 2004 :-

24. The Amending Act is prospective in application and therefore,

its provisions would not apply to any partition that was affected
before 20 December 2004. Section 6 (5) states:
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Under Section 6 (5) – Nothing Contained in this section shall apply to

a partition, which has been effected before the 20th day of
December 2004.

(viii) Recognition of oral partition :-

25. The amending Act clearly says that the term partition used in
this whole section means a partition that is in writing and duly
registered or the one that is affected by a decree of court in essence,
proving which would be easy. The present Act makes it clear that
the terms partition refers to only those partitions that are either
executed in writing and registered as per the Registration Act 1908,
or have been undertaken in pursuance to the decree of a court. The
Act provides :

Explanation – For the purposes of this section partition means any

partition made by execution of a deed of partition duly registered
under the Registered Act 1908 or partition affected by a decree of a
court.

(IV) Abolition of special rules relating to dwelling house :-

26. One of the major gender discriminatory provisions under Hindu

Succession Act, 1956 was section 23, which specified special rules
relating to devolution of a dwelling house.

27. Under Section 23 – Where a Hindu intestate has left surviving

him or her both male and female heirs specified in class 1 of the
schedule and his or her property includes a dwelling house wholly
occupied by members of his or her family then notwithstanding
anything contained in this Act, the right of any such female heir to
claim partition of the dwelling house shall not arise female heir is a
daughter, she shall be entitled to a right of residence in the dwelling
house only if she is unmarried or has been deserted by or has
separated from her husband or is a widow.

28. Under this section, the right of female class I heirs was limited
to a right of residence in the dwelling house. Their ownership did not
vest in them a right to have the house partitioned and specifying of
their shares, till the male heirs chose to destruct their joint status
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themselves. In case the female heir was a married daughter, her

ownership was without even a right of residence unless she was
unmarried widow or was deserted by or separated from her husband.
In other words, her marital status and her relations with her husband
had a direct reflection on her need to have a residence in her own
property.

29. The purpose envisaged by the legislature for enacting this

provision was to defer the actual partition of the dwelling house that
was actually and wholly in occupation of the male heirs until they
themselves chose to destruct their joint status.

(V) Deletion of section 24 : -

30. Under the old law, the general rules of succession in section 24
clarified the position of the three specific widows, who were eligible
to inherit the property of the intestate. These three widows were
widow of predeceased son, widow of a predeceased son of a
predeceased son and brother’s widow. The first two were class I
heirs, while the third was a class II heir Sec 24 as it stood before the
deletion provided as follows :

31. Certain widows remarrying may not inherit as widows – Any

heir who is related to an intestate as the widow of a pre deceased
son of a pre deceased son or the widow of a brother shall not be
entitled to succeed to the property of the intestate as such widow, if
on the date the succession opens she has re-married.

32. These widows could inherit as such only when they had not
remarried on the date the succession opened. If they had remarried,
they would have ceased to be widows of the respective relatives of
the intestate and would not have been eligible to inherit the property
of the intestate.

(xi) Eligibility of female coparceners to make a testamentary

disposition :-

33. The introduction of daughters as coparceners and creation of

rights in their favour that is same as that of the son has been
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recognized in section 30 of the amending Act as well. A female

coparcener is empowered to dispose of by him or her in place of
disposed by him. The Hindu Succession Act, 1956, for the first time
provided competency to an undivided coparcener to make a valid
bequest of his share in Mitakshara coparcenary and the present Act
extends this competency to a female coparcener as well.

(xii) Introduction of four new heirs in Class I category :-

34. The schedule of the principal Act has been amended and four
new heirs have been added to the class I category. This change has
been brought into only in case of a male intestate while the category
of heirs to a female intestate has not been touched at all. These four
heirs were previously class II heirs and were excluded both in
presence of the class I heirs and the father of the intestate.
Presently, as their placement has been changed, they inherit along
with class I heirs and would exclude the father in their presence.

35. Thus the amendment of Hindu Succession (Amendment) Act of

2005 is a total commitment for the women empowerment and
protection of women’s right to property. This amending Act in a
partrilineal system, like Mitakshara school of Hindu’s law opened the
door for the women, to have the birth right of control and ownership
of property beyond their right to sustenance.

Prl. Senior Civil Judge,

Ananthapuramu
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SUCCESSION UNDER INDIAN SUCCESSION ACT, 1925

IN RESPECT OF CHRISTIANS

Submitted by
S. Ramanaih,
Senior Civil Judge, Kadiri.

INTRODUCTION

The Christian Law of Succession is governed by the provisions in

the Indian Succession Act, 1925. The Indian Christians Succession Act

recognizes three types of heirs for Christians : the spouse, the lineal

descendants, and the kindred. As per Section 2(d) of the Act, “Indian

Christian” means a native of India who is, or in good faith claims to be, of

unmixed Asiatic descent and who professes any form of the Christian

religion.

Concept of Succession in brief, deals with how the property of a

deceased person devolves on his heirs. The property may be ancestral

or self-acquired, and may devolve in two ways (1) by Testamentary

Succession, i.e. when the deceased has left a will bequeathing his

property to specific heirs; (2) By Intestate Succession i.e. when the

deceased has not left a will whereby the law governing the deceased

(according to his religion) steps in, and determines how his estate will

devolve.

Intestate Succession among Indian Christians :

Section 30 of the Indian Succession Act, 1925 defines i.e. the

person who is deemed to die intestate in respect of all property of which

he has not made a testamentary disposition which is capable of taking

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effect. Thus any property which has not already been bequeathed or

allocated as per legal process, will, upon the death of the owner, devolve

as per the rules contained in Chapter II of the Act. Intestacy is either

total or partial. There is a total intestacy where the deceased does not

effectively dispose of any beneficial interest in any of his property by

will. There is a partial intestacy where the deceased effectively disposes

of some, but not all, of the beneficial interest in his property by will.

Domicile

The Domicile of the deceased plays an integral role in determining

the method of devolution of his property. Halsbury defined 'domicile'

thus: “A person's domicile is that country in which he either has or is

deemed by law to have his permanent home” Section 5 of the Act

categorically states that succession to the movable property of the

deceased will be governed by the lex loci as per where he had his

domicile at the time of his death; whereas succession to his immovable

property will be governed by the law of Indian (lex loci rei sital), no

matter where he was domiciled at the time of his death. Section 6 of

Act qualifies this provision by stating that a person can have only one

domicile for the purpose of succession to his movable property. It must

be noted that domicile and nationality differ from each other – domicile

deals with immediate residence, whereas nationality implies the original

allegiance borne by the person. Section 15 lays down that upon and

during subsistence of marriage, the wife acquires the domicile of her

husband automatically.
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Kindred or Consanguinity

Section 24 of the Act makes reference to the concept of kindred

and consanguinity defining it as “the connection or relation of persons

descended from the same stock or common ancestor.” Section 25

qualifies 'lineal consanguinity' with regard to descent in a direct line.

Under this head fall those relations who are descendants from one

another or both from the same common ancestor. So succession can be

either 'per capita' (one share to each heir, when they are all of the same

degree of relationship) or 'per stirpes' (division according to branches

when degrees of relationship are discrete). For Christians if one were to

claim through a relative who was of the same degree as the nearest

kindred to the deceased, one would be deemed to stand in the shoes of

such relative and claim 'per stirpes”.`

Section 26 says about collateral consanguinity as occurring when

persons are descended from the same stock or common ancestor, but

not in a direct line. The law for Christians does not make any distinction

between relations through the father or the mother. The relations from

the paternal and maternal sides are equally related to the intestate, they

are all entitled to succeed and will take equal share among themselves.

Further no distinction is made between full-blood/half blood/uterine

relations; and a posthumous child is treated as a child who was present

when the intestate died, so long as the child has been born alive was in

the womb when the intestate died.

Christian law does not recognize children born out of wedlock it

only deals with legitimate marriages. Further it does not recognize

polygamous marriages either.

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Section 32 says that the property of an intestate devolves upon the

wife or husband or upon those who are of the kindred of the deceased, in

the order and according to the rules containing in Chapter-II of the Act.

Rights of the Widow and Widower

Sections 33, 33-A, 34 of the Act govern succession to the widow. If

the deceased has left behind both a widow and lineal descendants, she

will get one-third share in his estate while the remaining two-thirds will

go to the latter. If no lineal descendants have been left but other kindred

are alive, half share of the estate passes to the widow and rest to the

kindred. If no kindred are left either, the whole of the estate shall belong

to his widow.

Section 35 lays down the rights of the widower of the deceased.

It says that husband surviving his wife has the same rights in respect of

her property, if she dies intestate, as a widow has in respect of her

husband's property, if he dies intestate. It simply says widower shall

have same rights in respect of her property as she would in the event

that he predeceased her.

Rights of Children and Other Lineal Descendants

If the widow is still alive, the lineal descendants will take two-

thirds of the estate otherwise they will take whole of estate of the

deceased. Equal division of shares applies if they stand in the same

degree of relationship to the deceased as per Sections 36 to 40 of the

Act.

Section 48 says, where the intestate has left neither lineal

descendant, nor parent, nor brother nor sister, his property shall be

divided equally among those of his relatives who are in the nearest
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degree of kin to him. If there are no heirs whatsoever to the intestate,

the doctrine of escheat can be invoked by the Government, whereupon

the estate of the deceased will revert to the State.

Testamentary Succession among Indian Christians

Testamentary succession dealt with under Part VI of the Indian

Succession Act, 1925. As per Section 59 of the Act, every person of

sound mind, not being a minor, may dispose of his property by will.

Explanation 1 – A married woman may dispose by will of any property

which she could alienate by her own act during her life.

Explanation 2 – Persons who are deaf or dumb or blind are not thereby

incapaciated for making a will if they are able to know what they do

by it.

Explanation 3 – A person who is ordinarily insane may make a will

during an interval in which he is of sound mind.

Explanation 4 – No person can make a will while he is in such a state of

mind, whether arising from intoxication or from illness or from any other

cause, that he does not know what he is doing.

Sections 57 to 191 of the Act comprehensively deal with all issues

connected with wills and codicils, and the making and enforcing of the

same, including capacity to make a will, formalities needed for wills,

bequests which can be validly made etc.

CONCLUSION

The Indian Succession Act, 1925 is “archaic in nature and fosters

an approach that solidifies distinctions based on gender and thus

prejudicial and unfair to status of women and Christian mother of

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deceased intestate”, the law panel said, recommending repeal of these

provisions.

“A plain reading of provisions built in Sections 42 to 46 of the

Indian Succession Act, 1925 reveals how the scheme envisioned therein

incorporates a preferential approach towards men and is unfair and unjust

towards Christian women,” Law Commission Chairman Hon’ble Justice

A.P. Shah said.

According to Section 42, where the deceased’s father is living

and there are no lineal descendants, father succeeds to property and

mother gets no share. Further, even in case where the deceased’s father

does not survive, provisions of Section 43 require the mother to equally

share with brothers or sisters of the deceased , rather being entitled to

what her husband was entitled to.

“Unfairness runs through provisions of Sections 44 and 45 as well,

and it is only when neither father, brother, sister or the children of the

deceased intestate are living that the property goes to the mother under

Section 46. Thus, “the commission strongly recommending repeal of all

such provisions and giving mother first and equal rights as father.

*******

Sd/- S. Ramanaiah
SENIOR CIVIL JUDGE,
KADIRI.
 MUSLIM LAW OF SUCCESSION

BY

S. SASIDHAR REDDY

DISTRICT JUDGE

The four sources of Islamic Law are

1. The Holy Quran

2. The Sunna ­ that is, the practice of the Prophet

3. The Ijma ­ that is, the consensus of the learned men of the
community on what should be the decision on a particular point

4. The Qiya ­that is, an analogical deduction of what is right

and just in accordance with the good principles laid down by
God.

Islamic law or Muslim law of succession flows from the above four
sources. Muslim law recognizes two types of heirs, Sharers and
Residuaries. Sharers are the ones who are entitled to a certain share
in the deceased’s property and Residuaries would take up the share in
the property that is left over after the sharers have taken theirs.

1.GENERAL PRINCIPLES

In cases of Non testamentary succession, the Muslim Personal Law

(Shariat) Application Act, 1937 gets applied. On the other hand, in
case of a person who dies testate i.e. one who has created his will
before death, the inheritance is governed under the relevant Muslim
Shariat Law as applicable to the Shias and the Sunnis. 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 succession1.

Nature of the Heritable Property:

Islamic concept of property is different from English concept of

property. It does not recognise limited estates as held by the Privy
council in Navazish Khan v Ali Raza Khan [AIR 1948 PC 134]

1 https://blog.ipleaders.in/rules-governing-inheritance-property-muslim-law/
“[19] The Chief Court in appeal took the view that under the wills of
Nasir Ali Khan the estate vested after his death in the three
successive tenants for life; that on the exercise of the power of
appointment it would pass immediately to the appointee; that there
was no period during which the estate would be in abeyance; and that
the rights of the heirs of the testator were not affected or
prejudiced. In their Lordship 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, whether the Hedaya or Baillie or more modern works, and no
decision of this Board which affirms that Muslim law recognises 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 (ayn) and the
usufruct in the property (manafi). Over the corpus of property the
law recognises 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.

"If a person bequeath the service of his slave, or the use of his
house, either for a definite or an indefinite period, such bequest is
valid; because as an endowment with usufruct, either gratuitous or
for an equivalent, is valid during life, it is consequently so after
death; and also, because men have occasion to make bequests of this
nature as well as bequests of actual property. So likewise, if a
person bequeath the wages of his slave, or the rent of his house, for
a definite or indefinite term, it is valid, for the same reason. In
both cases, moreover, it is necessary to consign over the house or
the slave, to the legatee, provided they do not exceed the third of
the property in order that he may enjoy the wages or service of the
slave, or the rent or use of the house daring the term prescribed,
and afterwards restore it to the heirs." (Hedaya, Vol. 4, p. 527,
chap. 5, entitled "Of Usufructuary Will.")

This distinction runs all through the Muslim law of gifts­gifts of

the corpus (hiba), gifts of the usufruct (ariyat) and usufructuary
bequests. No doubt where the use of a house is given to a man for his
life he may, not inaptly, be termed a tenant for life, and the owner
of the house, waiting to enjoy it until the termination of the
limited interest, may be said, not inaccurately, to possess a vested
remainder. But though the same terms may be used in English and
Muslim law, to describe much the same things, the two systems of law
are based on quite different conceptions of ownerships. English law
recognises ownership of land limited in duration; Muslim law admits
only ownership unlimited in duration, but recognises interests of
limited duration in the use of property”.

Heritable property is that property which is available to the

legal heirs for inheritance. After the death of a Muslim, his
properties are utilised for the payment of funeral expenses, debts
and the legacies i.e. wills, if any. After these payments, the
remaining property is called heritable property. Under Muslim law,
every kind of property may be a heritable property.2

For purposes of inheritance, Muslim law does not make any

distinction between corpus and usufruct or, between movable and
immovable, or, corporeal and incorporeal property. Under English
law, there is some difference in the inheritance of movable and
immovable property. Unlike Hindu law, there is no provision of
distinction between individual i.e. self acquired or ancestral
property. Each and every property that remains within the ownership
of an individual can be inherited by his successors. Whenever a
Muslim dies, all his property whether acquired by him during his
lifetime or inherited from his ancestors can be inherited by his
legal heirs. Subsequently, on the death of every such legal heir,
his inherited property plus the property acquired by him during his
lifetime shall be transferred to his heirs.3

But, under Muslim law there is no such distinction; any property,

which was in the ownership of the deceased at the moment of his
death, may be the subject­matter of inheritance.

Shia Law:

Under the Shia law, a childless widow is entitled to get her share
(1/4) in the inheritance only from the movable property left by her
deceased husband and she is not entitled to inherit land.

The concept of a joint family or of coparcenaries property (as is

recognised under Hindu law) is not known to Muslims. Whenever a
2 http://www.shareyouressays.com/knowledge/what-is-doctrine-of-increase-aulmuslim-property-law-in-india/117394
3 https://blog.ipleaders.in/rules-governing-inheritance-property-muslim-law/
Muslim dies, his properties devolve on his heirs in definite share of
which each heir becomes an absolute owner. Subsequently, upon the
death of such heir, his properties are again inherited by his legal
heirs, and this process continues.

Thus, unlike Hindu law, there is no provision for any ancestral or

joint­family property. Accordingly, under Muslim law of inheritance,
no distinction has been made between self­acquired and ancestral
property. All properties, whether acquired by a Muslim himself or
inherited by his ancestors, are regarded as an individual property
and, may be inherited by his legal heirs.4

No Birth­Right:

Inheritance of property in Muslim law comes only after the death of a

person, any child born into a Muslim family does not get his right to
property on his birth. If an heir lives even after the death of the
ancestor, he becomes a legal heir and is therefore entitled to a
share in the property. However, if the apparent heir does not survive
his ancestor, then no such right of inheritance or share in the
property shall exist.

Inheritance opens only after the death of a Muslim. No person may be

an heir of a living person (Nemoest haeres viventis). Therefore,
unless a person dies, his heirs have no interest in his properties.
Unlike Hindu law, the Muslim law of inheritance does not recognise
the concept of ‘right by birth’ (Janmaswatvavad).

Under Muslim law, an heir does not possess any right at all before
the death of an ancestor. It is only the death of a Muslim which
gives the right of inheritance to his legal heirs.

As a matter of fact, unless a person dies, his relatives are not his
legal heirs; they are simply his heir­apparent and have merely a
‘chance of succession, (spes successions). If such an heir­apparent
survives a Muslim, he becomes his legal heir and the right of
inheritance accrues to him. If the heir­apparent does not survive a
Muslim, he cannot be regarded an heir and has no right to inherit the
property.

Doctrine of Representation:5

Doctrine of representation is a well known principle recognised by

the Roman, English and Hindu laws of inheritance. Under the principle

4 http://www.shareyouressays.com/knowledge/what-is-doctrine-of-increase-aulmuslim-property-law-in-india/117394
5 B.R.Verma, “Islamic Law” 6th edition, pg.no.368
of representation, as is recognised by these systems of laws, the son
of a predeceased son represents his father for purposes of
inheritance. But, Muslim law does not recognise the doctrine of
representation. Under Muslim law, the nearer heir totally excludes a
remoter heir from inheritance. That is to say, if there are two heirs
who claim inheritance from a common ancestor, the heir who is nearer
(in degree) to the deceased, would exclude the heir who is remoter.
The Muslim jurists justify the reason for denying the right of
representation on the ground that a person has not even an inchoate
right to the property of his ancestor until the death of that
ancestor.6

2.RULES OF SUCCESSION

Sharers:

The Sharers are 12 in number and are as follows: (1) Husband, (2)
Wife, (3) Daughter, (4) Daughter of a son (or son's son or son's son
and so on), (5) Father, (6) Paternal Grandfather, (7) Mother, (8)
Grandmother on the male line, (9) Full sister (10) Consanguine sister
(11) Uterine sister, and (12) Uterine brother.

The share taken by each sharer will vary in certain conditions. For
instance, a wife takes 1/4th of share in a case where the couple is
without lineal descendants, and a one­eighth share otherwise. A
husband (in the case of succession to the wife's estate) takes a half
share in a case where the couple is without lineal descendants, and a
one­fourth share otherwise. A sole daughter takes a half share.
Where the deceased has left behind more than one daughter, all
daughters jointly take two­thirds.

If the deceased had left behind son(s) and daughter(s), then, the
daughters cease to be sharers and become residuaries instead, with
the residue being so distributed as to ensure that each son gets
double of what each daughter gets.

Distribution of the Property:

Under the Muslim law, distribution of property can be made in two

ways – per capita or per strip distribution.

The per capita distribution method is majorly used in the Sunni law.

6 http://www.shareyouressays.com/knowledge/what-is-doctrine-of-increase-aulmuslim-property-law-in-india/117394
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 per strip distribution method is recognised 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.
Hence the quantum of their inheritance also depends upon the branch
and the number of persons that belong to the branch.

Per­Capita and Per­Strip Distribution:

Succession among the heirs of the same class but belonging to

different branches may either be per­capita or per­strips. In a per­
capita distribution, the succession is according to the ‘number of
heirs’ (i.e. heads). Among them the estate is equally divided;
therefore, each heir gets equal quantity of property from the
heritable assets of the deceased.

On the other hand, in a per strip distribution, the several heirs who
belong to different branches, get their share only from that property
which is available to the branch to which they belong. In other
words, in the per stripe succession, the quantum of property
available to each heir depends on the property available to his
branch rather than the number of all the heirs.

Under Sunni law, the distribution of the assets is per­capita. That

is to say an heir does not in any respect represent the branch from
which he inherits. The per­capita distribution may be illustrated by
the following diagram.7

M has got two sons A and B. A has three sons, S 1, S2 and S3. В has

two sons S4 and S5. When M dies there are two branches of succession,
one of A and the other of B. Suppose, A and В both die before the
death of M so that the sole surviving heirs of M are his five
grandsons.

Now, under the per­capita scheme of distribution (as recognised under

7 http://www.shareyouressays.com/knowledge/what-is-doctrine-of-increase-aulmuslim-property-law-in-india/117394
Sunni law) the total number of claimants (heirs) is five and the
heritable property would be equally divided among all of them
irrespective of the branch to which an heir belongs.

Therefore, each of them would get 1/5 of the total assets of M. It

may be noted that under Sunni law the principle of representation is
recognised neither in the matter of determining the claim of an heir,
nor in determining the quantum of share of each heir.

Shia Law:

Under the Shia law, if there are several heirs of the same class but
they descend from different branches, the distribution among them is
per strip. That is to say, the quantum of property inherited by each
of them depends upon the property available to that particular branch
to which they belong. In the above­mentioned illustration, A and В
constitute two branches, each having 1/2 of M’s property. Both, A and
В pre­decease M.

But, the quantum of property available to each of their branch would

remain the same. Therefore, the surviving heirs of A namely, S 1, S2,

53 would get equal shares out of 1/2 which is quantum of property

available to the branch of A. Thus S1, S2 and S3 would get 1/6 each.
Similarly, the quantum of property available to the branch of В is
also 1/2 but the descendants from this branch are only two.

Accordingly, the 1/2 property of В would be equally shared by S 4 and

S5.

Therefore, 54 and S5 would get 1/4 each. It is significant to note

that for a limited purpose of calculating the share of each heir, the
Shia law accepts the principle of representation. Moreover, under the
Shia law this rule is applicable for determining the quantum of share
also of the descendants of a pre­deceased daughter, pre­deceased
brother, pre­deceased sister or that of a pre­deceased aunt.

Rights of females:

Muslim does 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 inheritable property.
However, it is generally found that the quantum of the share of a
female heir 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 their wife and children.

Female’s Right of Inheritance:

Males and females have equal rights of inheritance. Upon the death of
a Muslim, if his heirs include also the females then, male and female
heirs inherit the properties simultaneously. Males have no
preferential right of inheritance over the females, but normally 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.

Widow’s right to succession:

Under Muslim law, no widow is excluded from the succession. A

childless Muslim widow is entitled to one­fourth of the property of
the deceased husband, after meeting his funeral and legal expenses
and debts. However, a widow who has children or grandchildren is
entitled to one­eighth 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. But if her ailing
husband divorces her and afterwards, he dies from that illness, the
widow's right to a share of inheritance continues until she
remarries.

A Child in the Womb:

A child in the womb of its mother is competent to inherit provided it

is born alive. A child in the embryo is regarded as a living person
and, as such, the property vests immediately in that child. But, if
such a child in the womb is not born alive, the share already vested
in it is divested and, it is presumed as if there was no such heir
(in the womb) at all.

Primogeniture:

Primogeniture is a principle of inheritance under which the eldest

son of the deceased enjoys certain special privileges. Muslim law
does not recognise the rule of primogeniture and all sons are treated
equally.

However, under the Shia law, the eldest son has an exclusive right to
inherit his father’s garments, sword, ring and the copy of Quran,
provided that such eldest son is of sound mind and the father has
left certain other properties besides these articles.

Step­Children:

The step­children are not entitled to inherit the properties of their

step­parents. Similarly, the step­parents too do not inherit from
step­children. For example, where a Muslim H marries a widow W having
a son from her previous husband, the son is a stepson of H, who is
step­father of this son.

The step­father and step­son (or daughter) cannot inherit each

other’s properties. That step­child is competent to inherit from its
natural father or natural mother. Similarly, the natural father and
natural mother can inherit from their natural sons or daughters.

However, the step­brothers (or sisters) can inherit each other’s

properties. Thus, in the illustration given above, if a son (or
daughter) is bom out of the marriage of H and W, the newly born child
would be a step­brother (or sister) of the son from wife’s previous
husband.

These sons or daughters are competent to inherit each other’s

property. The step­brothers or sisters may either be, uterine or
consanguine. Muslim law provides for mutual rights of inheritance
between uterine and consanguine brothers or sisters.

Simultaneous Death of two Heirs:

When two or more persons die in such a circumstance that it is not

ascertainable as to who died first (i.e. who survived whom) then,
both of them cease to be an heir for each other. In other words,
where two or more heirs die simultaneously and, it is not possible to
establish as to who died first then under Muslim law, all the heirs
are presumed to have died just at one moment. The result is that such
heirs are regarded as if they did not exist at all; the inheritance
opens omitting these heirs.

Missing Persons:

According to the texts of Hanafi law, a missing person was supposed

to have been dead only after ninety years from the date of his birth;
till then the inheritance of his properties did not open. But, now
this rule has been superseded by Sec. 108 of the Indian Evidence Act,
1872.8

Rules of Exclusion of Heir to Entitled a Property under Muslim Law9

Every heir is entitled to inherit a property unless he (or she) is

debarred from inheritance under any rule of exclusion. Under Muslim
law, if an heir is disqualified on any of the following grounds, he
(or she) is excluded from inheriting the property.

However, insanity, want of chastity or any physical deformity is not

regarded as any disqualification for inheritance. Adulterous women,
insane or infirm persons are equally competent to inherit a property.

(a) Homicide:

A person, who causes the death of another, is disqualified for

inheriting the properties of the said deceased. It is a rule of
common prudence that law cannot allow a person to derive benefits out
of his own wrongs.10

Under Hanafi law, an heir who causes the death either intentionally
or negligently, is a disqualified heir or cannot inherit properties
of the deceased. Thus, even if the death is caused due to negligent
or accidental act of an heir, the heir is debarred from inheritance.

Shia Law:

Under the Ithna Asharia law, an heir is excluded from inheritance

only where the death is caused intentionally. If the death is caused
accidentally or negligently, the Ithna Asharia heir is not debarred
from inheritance.11

(b) Illegitimacy:

Under Sunni law, an illegitimate person is not entitled to inherit

the properties of his (or her) father. But an illegitimate person is
competent to inherit the properties of mother. It is to be noted that
under Sunni law, an illegitimate child is entitled to inherit not

8 http://www.shareyouressays.com/knowledge/what-is-doctrine-of-increase-aulmuslim-property-law-in-india/117394
9 http://www.shareyouressays.com/knowledge/what-is-doctrine-of-increase-aulmuslim-property-law-in-india/117394
10 Ibid. see also B.R.Verma “Islamic Law” 6th edition
11 ibid
only the mother’s properties but, through her also the properties of
mother’s other relations. In Bafatun v. Bilaiti Khanum, a Sunni
female died leaving her husband and an illegitimate son of her sister
as her sole surviving heirs.

The husband took 1/2 of her assets and the remaining 1/2 was
inherited by her sister’s illegitimate son who was the only distant
relative of the deceased. It was held by the court that under Sunni
law, an illegitimate son was competent to inherit his mother and
through his mother could inherit also the properties of his mother’s
sister. However, an illegitimate child is not entitled to inherit
mothers those relations who became relatives by any subsequent
remarriage of the said mother.

(c) Difference of Religion:

Under the Islamic texts, a non­Muslim is excluded from inheriting the

properties of a Muslim. But under the Muslim law as administered in
India, difference of religion is not any disqualification for
inheritance.

A legal heir of the deceased Muslim cannot be debarred from

inheritance on the ground that such heir was not a Muslim at the time
of death of the deceased. Under the Caste Disabilities Removal Act,
1850, renunciation of religion by any heir does not affect his (or
her) rights of inheritance under the personal law to which that heir
belonged before conversion.

Accordingly, a converted heir will continue to be governed by the

Muslim law of inheritance. Following illustration will clarify this
rule. A Muslim has a son and a daughter. The son renounces Islam and
converts to Christianity.

At the time of father’s death i.e. when the inheritance opens, the
daughter continues to be a Muslim but the son is a Christian. The
non­Muslim son is not excluded from inheritance and is competent to
inherit the properties of his father together with his Muslim sister.

However, it may be noted that religion of the porosities i.e.

deceased, is an important factor because the properties devolve under
the personal law to which the propositus belonged just before his
death. For example, if a Hindu becomes a Muslim through conversion
and then dies as a Muslim, his properties would be inherited by heirs
under Muslim law; the heirs under Hindu law cannot claim inheritance.

In K.P. Chandrashekhar v. Govt. of Mysore a Hindu woman converted to

Islam died as a Muslim. She had no heir under Muslim law. Her Hindu
brother claimed inheritance. It was held by the court that her Hindu
brother could not inherit because he was not an heir under Muslim
law.

(d) Exclusion of Daughters under Custom or Statute:

At certain places daughters are sometimes excluded from inheritance

under any local custom or under some specific enactment. For example,
among the Gujars and Backkerwals of Kashmir, there is a custom that
daughters cannot inherit in the presence of any male descendant of
the grandfather. Similarly, under the Watan Act, 1886, enforced in
Bombay, a daughter is excluded from inheritance in the presence of a
paternal uncle.12

Alienations of the Property of a Deceased Muslim by the Legal Heir13

1. Alienation by an heir of his share before the payment of debt:

Since the estate of Muslim vests in the heirs immediately on his

demise, an heir has the power of alienating his share and pass a good
title to a bona fide alienee for value, even if no distribution of
assets of the deceased has taken place, and notwithstanding the
outstanding debts of the deceased.

Under Muslim law, a sale of his share by an heir in execution of a

decree of his creditor amounts to a transfer and passes a good title
to the transferee.

If an alienation is made by an heir during the pendency of a suit of

a creditor of the deceased in which a charge is created on the
estate, then the transferee will take the property subject to the
charge.

Relinquishment or alienation of share by expectant heir not valid

The Mohammedan Law enjoins in clear and unequivocal terms that a

chance of a Mohammedan heir­apparent succeeding to an estate cannot
be the subject of a valid transfer or release. Section 6(a) of the
Transfer of Property Act was enacted in deference to the customary
law and law of inheritance prevailing among Mohammedans. the same can
be avoided either by the execution of a family settlement or by
accepting consideration for a future share.14

12 http://www.shareyouressays.com/knowledge/rules-of-exclusion-of-heir-to-entitled-a-property-under-muslim-
law/117458
13 http://www.shareyouressays.com/knowledge/what-is-doctrine-of-increase-aulmuslim-property-law-in-india/117394
14 Gulam Abbas Vs. Haji Kayyum Ali & Ors. [AIR 1973 SC 554] and Shehammal vs Hasan Khani Rawther & Ors [(2011)
9 SCC 223]
Doctrine of “Increase” (Aul)15

According to Muhammadan law, the shares of various sharers are fixed.

Where several sharers co­exist, it sometimes happens that the total
of their respective shares exceeds unity (one) 16. Thus, suppose the
deceased leaves behind a husband and two full sisters.

Ordinarily, the husband will take 1/2, as there is no child or child

of a son howsoever, and the two sisters together will take 2/3, as
there is no son. 1/2 + 2/3 = 7/6 which exceeds unity, and the
property falls short in distribution 17. This situation is resolved by
proportionately reducing the shares of each sharer. The method
adopted to effect this is to first (i) reduce the shares to a common
denominator; (ii) increase the denominator so as to make it equal to
the sum of the numerators allowing the numerators to stand as they
are.18

Illustrations:19

Shares Shares Common Reduced

denominator shares
Rule 1 Rule 2
(a) Husband 1/4 3/12 3/13

2 daughters 2/3 8/12 8/13

Father 1/6 2/12 2/13

13/12 1

Note: The total of the numerators is 13 (3+8+2). The denominator is,

therefore increased to 13 but numerators are not disturbed
(b) Widow 1/4 3/12 3/13

Mother 1/3 4/12 4/13

Full sister 1/2 6/12 6/13

13/12 1

(c) Widow 1/4 3/12 3/15

2 Full sister 2/3 8/12 8/15

Tr. grand father 1/6 2/12 2/15

Tr. grand mother 1/6 2/12 2/15

15/12 1

15 http://www.shareyouressays.com/knowledge/what-is-doctrine-of-increase-aulmuslim-property-law-in-india/117394
16 B.R.Verma, “Islamic Law” 6th edition, pg.no.449
17 http://www.shareyouressays.com/knowledge/what-is-doctrine-of-increase-aulmuslim-property-law-in-india/117394
18 B.R.Verma, “Islamic Law” 6th edition, pg.no.449
19 Supra Note 9 at Pg.no.450
 (d) Husband 1/2 3/6 3/8

Mother 1/3 2/6 2/8

Full sister 1/2 3/6 1/8

8/6 1

It may be noted that this doctrine is called “increase”, not because

the shares are increased, which is quite the opposite, the very
object of the doctrine being to diminish the shares, but because the
unity is reached by increasing the denominator of the fractional
shares20.

In other words, if it is found, on assigning their respective shares

to the sharers, that the sum total of the shares exceeds unity, the
share of each sharer is proportionately diminished, by reducing the
fractional shares to a common denominator and increasing the
denominator, so as to make it equal to the sum of the numerator21.

Difference between Shia and Sunni Law of ‘Increase’:

According to the Sunni law, the doctrine implies proportionate

reduction of all the shares. According to the Shia law, on the other
hand, it implies the reduction of the shares of the daughter or the
daughter and full or consanguine sister or sisters only. Other heirs
do not suffer22.

Rule of ‘Return’ (Radd) under the Muslim Law of Inheritance

If, on assigning their shares to the sharers, it is found that the

total of the shares does not exhaust the whole, the residue will go
to the residuaries23. But if there are no residuaries, the residue
will not go to distant kindred, but would be distributed among the
sharers in proportion to their shares. This right of reversioner is
called radd (“return”).

The applicable principles are that if there is only one sharer the
property will go to such sharer. If there are more sharers than one
to all of them proportionately to their shares. The exception to this
rule is that the Husband or wife is not entitled to “radd” so long as
there is another heir (whether among the sharers or the distant
kindred), but in the absence of all other heirs, the husband or wife

20 http://www.shareyouressays.com/knowledge/what-is-doctrine-of-increase-aulmuslim-property-law-in-india/117394
21 http://www.shareyouressays.com/knowledge/what-is-doctrine-of-increase-aulmuslim-property-law-in-india/117394
22 http://www.shareyouressays.com/knowledge/what-is-doctrine-of-increase-aulmuslim-property-law-in-india/117394
23 B.R.Verma, “Islamic Law” 6th edition, pg.no.451
will get by “radd”24.

The method of calculating the rateable increase in shares is as

follows:

(1) where there is no husband or wife­

(I) reduce all shares to a common denominator;

(II) reduce the denominator so as to make it equal to the sum

of the numerators, allowing the numerators to stand as
before;

(2) where there is a husband or wife, then if there is only one heir
allot residue to him or her, but if there are more heirs than one,
then (I) apply rule (1) above to the shares of sharers other than the
husband or wife,(II) multiply the residue (left after allotting the
share of the husband or the wife) by the new fractions resulting from
the application of rule (1) above.

Illustrations25:

Shares Shares Common Increased share

denominator rule rule (a) (ii)
(a) (i)
(a) Mother 1/6 1/6 1/5

Full sister 1/2 3/6 3/5

Ut.brother 1/6 1/6 1/5

5/6 1

NOTE: The sum of the numerators is 5(1+3+1). The denominator is

therefore, reduced to 5 but the numerators are allowed to stand.

(b) Tr. Grand 1/6 1/6 1/5

mother
Full sister 1/2 3/6 3/5

Cons.sister 1/6 1/6 1/5

5/6 1

(c) Husband 1/2 3/6 (Excluded from

Return)

Mother 1/2 3/6 (2/6 as sharer and

1/6 by Return

(d) Wife 1/4 (Excluded from

Return)

24 Ibid Pg.no.450
25 B.R.Verma, “Islamic Law” 6th edition, pg.no.452-453
 Cons. sister 3/4 (2/4 as sharer and
1/4 by Return

(e) Husband 1/2 (Excluded from

Return)

Daughter’s 1/2
(As an heir of the
daughter distant kindred
class
NOTE: Daughter’s daughter although of the distant kindred class
succeeds because the husband is excluded from return

(f) Full sister Whole 1/2 as sharer and 1/2 by Return

Daughter’s
(Excluded by full sister)
daughter

Shares Shares in Increased New Final

Common shares rule (a) fractions shares
denominator (ii) multiplie
rule (a) (i) d rule (b)
(ii)
(g) Wife 1/8 (Residue 4/32
7/8
Mother 1/6 1/4 1/4 X 7/32
7/8
Daughter 3/6 3/4 3/4 X 21/32
7/8
1

NOTE: the shares of the mother and daughter alone are increased
(1/6 and 3/6 to ¼ and ¾ respectively). The increased fractions are
then multiplied with the residue 7/8.

(h) Wife ¼ (residue ¾) 4/16

Full Sister 3/6 3/4 3/4 X 9/16

3/4
Cons.sister 1/6 1/4 1/4 X 3/16
3/4
1

These will be the shares of the two sharers. Thus, the Return (Radd)
is the apportionment of surplus among the sharers, when the shares do
not exhaust the property, and there are no residuaries.

There is one exception to the right to reverter of the sharers.

According to the original rule of Muslim law the husband or wife of
the deceased is not entitled to share in the return in any
situation.26 The consequence was that if the only sharer left was the
husband or the wife, he or she would get her fixed share and the
residue instead of reverting to the husband or the wife by return

26 Ibid pg.no.451
went to the distant kindred.27 If there were no distant kindred it
went to bait­ul­mal.28 The rigour of this rule was relaxed in modern
times and although distant kindred are preferred, the property does
not escheat to the government when there are no distant kindred. In
such case the property will be allowed to go to the husband or wife
by return.29

Shia Law:

Under the Shia law, if there is a surplus after satisfying the

shares, it is not necessary that there should be no residuaries in
order to apply the doctrine of return. If there is a surplus left
after the allotment of shares of the sharers, but there are no
residuaries in the class to which the shares belong, the surplus
reverts to the sharers in the proportion of their respective
shares.30

Difference between ‘Increase’ and ‘Return’:

The doctrine of “return” is the converse of the doctrine of

“increase”. In “increase”, the shares exceed unity, and suffer a
proportionate reduction. In “return”, the shares fall short of unity,
and are proportionately increased. In return, the husband and wife do
not benefit if there is any other sharer or a distant kindred, but
they are not saved from the operation of the doctrine of increase.

Thus, the important points of difference between the two are as

under:

1. In ‘Increase’, the total of the shares adds up to more than unity;

whereas in ‘return’ the total falls short of unity.

2. In ‘Increase’, the shares undergo rateable reduction. In ‘Return’,

the shares undergo a rateable increase.

3. In ‘Increase’, the share of the husband or wife suffers a

proportionate reduction along with other sharers. In ‘Return’, the
husband or wife is not entitled to the ‘Return’ so long as there is
any other heir, whether sharer or distant kindred.31

Development of Muslim Identity in India and the role of law

The Controller Of Estate Duty, ... vs Haji Abdul Sattar Sait & Ors
[AIR 1972 SC 2229]

27 Ibid pg.no.451
28 ibid
29 Mir Isab v. Isab, (1920) 20 Bom. L.R. 942

30 http://www.shareyouressays.com/knowledge/what-is-doctrine-of-increase-aulmuslim-property-law-in-india/117394
31 http://www.shareyouressays.com/knowledge/what-is-doctrine-of-increase-aulmuslim-property-law-in-india/117394
(1) According to Mohamedan Law a person converting to
Islam changes not only his religion but also his
personal law. This rule, however, applied only to cases of
individual conversions and not to wholesale conversions such
as Khojas and Cutchi Memons. In such cases of wholesale
conversion of a caste or community the converts might retain
a part of their original personal law according to the
hitherto held habits, traditions and the surroundings.
[236C]
(2) The view finally settled in Bombay is that the
application of Hindu Law to Cutchi Memons is now restricted
to cases of succession and inheritance as it would apply in
the case of an intestate, and separate, Hindu, possessed of
self­acquired property. [241H]
Haji Cosman v. Haroon Saleh Mahomed, (1923) I.L.R. 47 Bom.
369, referred to.
(3) But the Madras view, supported by the records of
several cases in the Madras High Court, is that Cutchi
Memons, who had settled down in Madras, had regulated their
affairs, since they had settled down amidst
232
Hindus, according to Hindu Law not only in matters of
succession and inheritance, but also in matters of their
property including the Hindu concepts of coparcenary and
survivorship. [246C­D]
Hajee Aboo Bucker Sait v. Ebrahim Hajee Aboo Bucker Sait,
A.I.R. 1921 Mad. 571; Abdul Sattar Ismail v. Abdul Hamid
Sait, A.I.R. 1944 Mad. 504; Abdul Hameed Sait v. The
Provident Investment Company Ltd., I.L.R. [1954] Mad. 939
(F.B.); Abdurahiman v. Avoomma, A.I.R. 1956 Mad. 244 and
Begum Noorbanu v. Deputy Custodian General of Evacuee
Property, A.I.R. 1965 S.C. 1937, referred to.
(4) The question as to which customary law is applicable
turns really on the consideration as to which law a
community decides to have for regulating succession to the
properties of its members depending upon amongst whom they
had settled down and the surroundings and traditions they
found in that place. That being the position, there is no
question of preferring one view to another in the present
case as between the Madras and Bombay views, because the
Madras view applies to the respondents. [245H]
Abdulrahim Haji Ismail Mithu v. Halimabai, (1915­1916) L.R.,
43 I.A. 35 and Khatubai v. Mohamad Haji Abu, (1922­1923)
L.R., 50 I.A. 108, applied.
Ella Sait v. Dharanayya, 10 Mys, L.J., 33, disapproved.
(5) Moreover, if such preference is expressed by the Court
now, it may have the result of upsetting a number of titles
settled on the basis of the decisions of each of the two
High Courts and perhaps elsewhere.
(6) The Cutchi Memons Act (46 of 1920) does not apply to
the respondents, because, the declaration under s. 2 of the
Act to get its benefit and be governed by Mahomedan Law had
not been made by any one concerned. [247E]
(7) The option of being governed by the Mahomedan Law
contained in the 1920­Act was replaced by a uniform and
mandatory provision, in the Cutchi Memons Act (10, of
19,38), which provided that all Cutchi Memons shall, in
matters of succession and inheritance, be governed by the
Mahomedan Law. But the 1938­Act was not extended to the
Civil Station area in Bangalore where the deceased and the
members of his family had settled down and carried on
business. In 1948, when that area was retroceded to Mysore,
the Mysore Legislature passed the Retroceded (Application of
Laws) Act, 1948 extending to that area certain laws and
enactments in force in the Princely State of Mysore, one of
which was the Mysore Cutchi Memons Act, 1943, which was
'identical with 1938 Central Act. But s. 3 of the 1943­Act
provided that 'nothing in 'this Act shall affect any right
acquired before its commencement etc.' The respondents
having been born. before 1948 (when the Act was made appli­
cable to them) had already acquired a right by birth in the
property held by their father which right was expressly
saved by s. 3 of the 1943­Act. There was, therefore, no
question of the passing of the properties to the respondents
on the death of their father as envisaged by s. 3 of the
Estate Duty Act. [247H­248F]
 Law relating to Succession Certificates Under Indian

Succession Act 1925

Submitted by:

A. Purnima,
Senior Civil Judge,
Penukonda.

1. OBJECT :-

The object of the Indian Succession Act, 1925 is expressed in its

preamble : “Whereas it is expedient to consolidate the law applicable

to intestate and testamentary succession...” The object of issuing a

Succession Certificate fulfills the said object. The Certificate

facilitates the collection of debts on succession, gives protection to

the concerned parties, and avoids unnecessary litigated questions of

disputed title.

2. WHEN A SUCCESSION CERTIFICATE CAN BE GRANTED?

Section 370 of the Act defines when a Succession Certificate be

granted. A Succession Certificate may be granted in any of the

following circumstances:

a) When the grant of probate or letters of administration is not

compulsory under Sections 212 & 213 of the Indian Succession

Act, 1925;

b) When the deceased is a Muslim or an Indian Christian;

 -2-

c) When the deceased is Hindu, and he has left a Will, but the grant

of a Probate is not compulsory under Section 57 of the Act;

d) When the deceased is a member of a joint family, and a member

of that joint Hindu family, having right of survivorship and not as

heir can apply for Succession Certificate in respect of shares of

joint stock companies standing in the name of the deceased co

parcener. However, a Succession Certificate is not necessary to

recover dues payable to a joint Hindu family.

e) A Succession Certificate establishes who are the legal heirs of the

deceased and gives them the authority to inherent debts, securities

and any other assets.

f) A reading of Sections 370 and 372 of the Act, particularly, Clause

(f) of Sub- section (1) of Section 372 of the Act, will show that a

succession certificate can be applied for only in respect of debt

and securities.

3. EFFECT OF SUCCESSION CERTIFICATE :

By virtue of Section 380 of the Act, a Succession certificate

granted under Part X of the Act shall have effect throughout India.

The effect of issuing a Succession Certificate is that it will afford full

indemnity to all persons owing the debts or liable on the securities

 -3-

specified in the certificate as regards all payments made or dealings

had in good faith in respect of such debts or securities or with the

grantee of the Succession Certificate. (Vide Section 387).

4. JURISDICTION :

Section 371 of the Act gives an indication regarding the Court

having a jurisdiction to grant Succession Certificate. In exercise of

the said power the state of Andhra Pradesh has issued the following

G.O dated 08.02.2012.

GOVERNMENT OF ANDHRA PRADESH

ABSTRACT

Courts – Indian Succession Act – Issuance of Succession Certificates in

succession Ops – Conferment of powers on Senior Civil Judge Courts to
entertain Original Petitions filed under the Indian Succession Act, 1925 –
Notification - Orders – Issued.
==============================

LAW (LA&J-HOME-COURTS-C2) DEPARTMENT

G.O.Ms.No. 11 Dated: 08-02-2012.

From the Registrar General, Andhra Pradesh High Court,

Hyderabad, letter No.Roc.No.408/SO-3/2009, dated:01-11-2011.

ORDER:

The Registrar General, High Court of Andhra Pradesh, Hyderabad, in

his letter read above, has forwarded the Draft Notification with regard to
the Conferment of powers on Senior Civil Judge Courts to entertain Original
Petitions filed under the Indian Succession Act, 1925.
 -4-
2. The Government after careful examination of the matter have decided
to approve the Draft Notification with regard to the Conferment of powers
on Senior Civil Judge Courts to entertain Original Petitions filed under the
Indian Succession Act, 1925.

3. Accordingly, the following Notification will Extraordinary issue of the

Andhra Pradesh Gazette be published in an

NOTIFICATION

In exercise of the powers conferred by sub-section (1) of section 388

of the Indian Succession Act, 1925 (Central Act 39 of 1925) and of all other
powers here unto enabling the Governor of Andhra Pradesh hereby confers
powers on all the Principal Senior Civil Judges, where there are more than
one Senior Civil Judge’s Court and Senior Civil Judge’s Court where only
one Court is functioning at such station to entertain original petitions filed
under the Indian Succession Act, 1925 and shall exercise the functions of
District Judge under Part-X of the said Act within their respective
jurisdictions.

BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA

PRADESH.

Sd/-A.SHANKAR NARAYANA,

SECRETARY TO GOVERNMENT,
LEGISLATIVE AFFAIRS & JUSTICE.

5. PROCEDURE TO OBTAIN A SUCCESSION CERTIFICATE

To obtain such a certificate, a petition to the District Judge (Now

Senior Civil Judge) within whose jurisdiction the deceased person

ordinarily resided at the time of his/her death or, if at the time he/she
 -5-

has no fixed place of residence, the District Judge (Now Senior Civil

Judge) within whose jurisdiction any part of the property of the

deceased is situated.

6. PETITION FOR CERTIFICATE

A petition for Succession Certificate must contain the foolowign

particulars:

 Time of death of deceased;

 Residence or details of properties of the deceased at the time

of death within the jurisdiction it falls under;

 Details of family or other near relatives;

 Right of the petitioner;

 Absence of any impediment to the grant of the certificates.

7. GRANT OF CERTIFICATE

On making the petition, if the District Judge (Now Senior Civil

Judge) is satisfied with the grounds of the petition, he/she can grant

an opportunity of hearing to the person who, in his/her opinion,

should be heard. After hearing the case from all parties, the Judge

can decide the right of the Petitioner to be granted the Succession

Certificate. The Judge would then pass an order for grant of

certificate specifying the debts and securities set forth in the

 -6-

application empowering the person to receive the interest or divided

or to negotiate or transfer or do both.

8. REVOCATION :

According to Section 383, a Succession Certificate may be

revoked in any following circumstances:

a) That the proceeding to obtain the certificate were defective

in substance;

b) That the certificate was obtained fraudulently by the making

of a false suggestion, or by the concealment from the court

of something material to the case;

c) That the certificate was obtained by fraudulently,

concealment of means of an untrue allegation of a fact

essential in point of law to justify the grant thereof, though

such allegation was made in ignorance or inadvertently;

d) That the certificate has become useless and inoperative

through circumstances;

e) That a decree or order made by a competent Court in a suit

or other proceeding with respect to effects comprising debts

or securities specified in the certificate renders it proper that

the certificate should be revoked.

 -7-

9. SECTION 384 APPEAL :-

Subject to the other provisions of this Part, an appeal shall lie to

the High Court from an order of a District Judge granting, refusing or

revoking a certificate under this Part, and the High Court may, if it

thinks fit, by its order on the appeal, declare the person to whom the

certificate should be granted and direct the District judge, on

application being made therefor, to grant it accordingly, in

supersession of the certificate, if any, already granted.

(2) An appeal under sub-section (1) must be preferred within the

time allowed for an appeal under the Code of Civil Procedure,

1908 (5 of 1908).

(3) Subject to the provisions of sub-section (1) and to the provisions

as to reference to and revision by the High Court and as to

review of judgment of the Code of Civil Procedure, 1908 (5 of

1908), as applied by section 141 of that Code, an order of a

District Judge under this Part shall be final.

By virtue of G.O. of A.P. Government, passed in concurrence

with Hon’ble High Court of Judicature at Hyderabad, as referred in

Page No.4 of this paper, appeal from the order passed by Senior Civil

Judge in a succession O.P. shall lie before District Court, concerned;

but, not before Hon’ble High Court.

Recent Decision on this aspect is :

2017 (2) ALT 523 (D.B)

 -8-

Pasumarthi Srinivasa

Vs.

(Their Lordship Suresh Kumar Kait and U. Durga Prasad Rao, J.J).

In the said decision it was clarified as follows:

“In view of the specific provision creating forum for appeal,

which is the District Court in the instant case, the submission of

Counsel that the appeal shall lie before the High Court cannot be

accepted.

Section 384 is subject to the other provisions of Part X, which

means the said section is subject to Section 388 as per which,

against the order passed by an inferior Court, an appeal shall lie

before the District Judge and not before the High Court.”

10. IMPORTANT DECISIONS :

1. AIR 1963 A.P. 135 Rama Swami Vs. Venkamma

Succession Certificate is to be where it is a “Debt”. It does not

apply to a mortgage debt as it is not a suit for a debt. A suit on a

mortgage is one to realize an interest in immovable property, while

section 214 contemplates a simple debt.

2. AIR 1993 A.P.337 = 1993 (2) ALT 274. Branch Manager, SBH Vs.

Gadiraju Rama Bhaskara Viswanadha Raju

 -9-

A bank cannot insist upon the production of a succession

certificate for delivery of the jewellery of deceased pledged with it.

3. 1990 (2) ALT. 117 Venugopal Loya Vs. Vijaya Lakshmi Bung

No succession certificate is required to open a bank locker of

the deceased.

LEGAL HEIR CERTIFICATE AND SUCCESSION CERTIFICATE :-

Legal heir certificate and succession certificate are totally

different from each other. If the head of the family or any member of

the family passes away, then the next legal heir who is directly

related to the deceased such as, his or her husband, wife, son,

daughter, mother has eligibility to apply for succession certificate. If

the deceased person is a Government employee then legal heir

certificate is issued for the sake of family pension or for any kind of

appointments on the necessary grounds. Legal heir certificates are

issued by the Tahsildar to recognize the actual deceased person

living heirs and the succession certificates are issued by the Court to

deceased person legal heirs.

SECTION 214 OF THE ACT :-

Proof of representative title a condition precedent to recover

through the Courts of debts from debtors of deceased person. No

court shall pass a decree against a debtor of a deceased person for

payment of his debt to a person calming on succession unless a

succession certificate or any other certificate as contemplated under

 -10-

section 214 of the Act is produced. No court can execute a decree

against the judgment debtor for payment of a debt due to a

deceased decree holder, which a person claims on succession,

except on production of a succession certificate (Section 214(1)(b)).

In S. Rajyalakshmi Vs. S. Seetha Mahalakshmi (AIR 1976 AP

361) it was held that “no succession certificates is necessary tobe to

obtained under section 214(1)(b) of the Act,. To execute the decree

for costs”.

In K. Lakshmianrayamna Vs. V. Gopala Swamy (AIR 1963 AP

438) it was observed that “the mandatory nature of the provision

under section 214 of the Act, makes it necessary for the party to

obtain a succession certificate, and certainly it cannot be waived

with impunity. It is not correct to say that section 214 does not apply

where the suit was originally instituted by the creditor himself but

only applies where it is instituted by the legal representative.”

In Akula Rangappa (Died by L.Rs) Vs. Narayana Swamy (AIR

1988 AP 314)

(1) Where a decree-holder himself files an execution application and

he dies before executing the decree and recording the full

satisfaction the legal representatives are entitled to come on record

without obtaining a succession certificate as required under section

214(1) (b) of the Act.

 -11-

(2) Where the legal representatives themselves are seeking to

execute the decree obtained by the deceased decree-holder, then it

is mandatory under section 214(1)(b) of the Act to obtain a

succession certificate and then to have the decree executed.

In T.Rama Seshagiri Rao and another Vs. N. Kamala Kumari

(AIR 1982 AP 107) it was held that “when a person files a petition for

execution of a maintenance decree with a charge, he is applying for

enforcement of the charge by sale of the property in possession of

the judgment debtor. It is not an application for recovery of any debt

but the enforcement of the liability, as against the person, who had

not paid the maintenance allowance, which liability he was bound to

discharge. If so, there is no need for the legal representative of the

deceased decree holder to obtain a succession certificate.”

In A. Sreekantha Reddy and others Vs. Varanasi Rajeena

Venugopal Reddy (2004 (5) ALD 200) their Lordship categorically

held that “gold ornaments pledged are not debts and therefore, there

is no scope for obtaining a succession certificate in respect of the

same. It is legally baseless demand on the part of the Banks insisting

to obtain a succession certificate to enable the respondent to receive

the gold ornaments pledged with them by the deceased.”

At the outset, in the absence of a will, a succession certificate

will be the primary document through which the heirs can realize the

debts and securities of the deceased relative. A succession

 -12-

certificate is a document that gives authority to the person who

obtains it, to represent the deceased for the purpose of collecting

debts and securities due to him or payable in his name. Grant of

Succession Certificate is a Summary Procedure. It is not a final

verdict on the question of title.

–-----0000-------