Strictly speaking, Muslim law did not recognize the concept of administration of estates. It merely laid down machinery for the distribution of the estate of the deceased among the legatees and the heirs.
In the words of Fyzee, “It is as though die estate were a round cake, which from a distance seems entire; but as each heir approaches the table, the cake is found to be carefully cut up and divided proportionately; and all that remains to be done is to hand over to him his particular piece”.
The concept of administration of estates was introduced in India for the first time during the British rule by the Probate and Administration Act, 1881. This was merely an enabling statute. The Probate and Administration Act, 1881 was replaced by the Indian Succession Act, 1925.
Image Source: photodivision.gov.in
ADVERTISEMENTS:
In modern India, the administration of the estate of a deceased Muslim as well as of the members of other communities is governed by one uniform law, viz., the Indian Succession Act, 1925.
It should be noted that the substantive law that is applicable to the estate of a deceased Muslim is still Muslim law, i.e., the law of the school to which the deceased belonged at the time of his/her death.
At the same time, it should also be noted that if the deceased Muslim had married under the Special Marriage Act, or his marriage was registered under that Act, the succession to his estate, including the substantive law, will be entirely governed by the provisions of the Indian Succession Act, 1925.
Administration:
ADVERTISEMENTS:
The administration of estate means that the estate of the deceased is to be applied successively to the payment of funeral expenses (not the amount spent in ceremonies performed for securing the peace of the soul of the deceased), expenses of proceedings for obtaining probate or letters of administration, wages and services rendered to the deceased within three months of his death, debts of the deceased, and legacies. The remaining estate is to be distributed among the heirs.
Legal representative:
As a general rule, the executor or administrator (or in their absence, the heirs) of a deceased Muslim is his legal representative, and all the assets of the deceased vest in him. It is the duty of the executor or the administrator, where there is one, to collect the assets, discharge the debts, pay the legacies, and distribute the balance of assets among the heirs.
However, even when a Muslim dies leaving behind a will, it is not necessary for the executor to obtain the probate of the will. But, if the debts due to the deceased are to be recovered, the representation is necessary, as no court of law will pass a decree in favour of the estate of the deceased unless the representation, in any form, as laid down in the Succession Act, 1925, is obtained. Thus, when a deceased dies leaving behind a will, the probate may be obtained. In case he dies intestate, the letters of administration may be obtained.
In case the executor is not able to carry out the administration in his life time, he can, under the Hanafi law, appoint a successor to himself to carry out the purpose of the will. In case he dies without appointing a successor, it seems, the appointment of another executor by the Court will be necessary.
ADVERTISEMENTS:
The Shia authorities hold the view that unless an executor has been authorized to nominate his successor by the testator, he has no power of appointing a successor to himself. Where there are more than one executor, the survivors are competent to continue to act as executors. It seems that under Shia law, the court has no power of appointing an executor so long as there is any surviving executor.
After the payment of funeral expenses and debts of the deceased, the executor, under Muslim law, acts as an active trustee in respect of bequeathable one-third, and as a bare trustee for the heirs in respect of the remaining two-third. The powers and duties of executors and administrator are laid down in the Indian Succession Act. These provisions also apply to executors and administrators of a Muslim.
According to the strict Muslim law, a non-Muslim cannot be an executor but in modern India a non-Muslim can be validly appointed as an executor.
Probate or letters of administration with the will annexed may be obtained, whether the will is oral or in writing. Once the probate or letters of administration is granted, it conclusively established the claim of the executor or administrator to represent the estate for all purposes.
In case an executor appointed under a will does not obtain probate, the court has power to appoint any person as an administrator with the will annexed. The letters of administration may be granted to a person who is an heir, legatee or creditor of the deceased.
Any person claiming an interest in the estate of the deceased may bring a suit for administration for the purpose of ascertainment of the estate and of debts and liabilities relating to it, for a proper allocation of debts to the properties to which different rules of descent apply, for accounts, and for the declaration and delivery of the interests therein to those entitled to him.
Vesting of Estate:
The estate of the deceased vests in the executor, where there is one and it vests in him, even if no probate was obtained by him. In case the letters of administration have been obtained, the estate vests in the administrator. If there is neither an executor nor an administrator, then the property vests in the heirs. The law may be stated thus:
A. When a Muslim dies leaving behind a will where under he had appointed an executor, then his estate vests in him, as he is the legal representative of the deceased. In particular: (i) the bequeathable one-third vests in him for the purpose of the will, and (ii) the rest vests in him as a bare trustee for the heirs. An executor is required to do the following:
(a) To collect all the assets of the deceased, including the debts,
(b) To pay all charges against the estate, such as funeral expenses,
(c) To pay the debts of the deceased,
(d) To pay the legacies, and
(e) To distribute the remaining property among the heirs.
Although it is not necessary for an executor to obtain the probate, but no court will pass a decree against a debtor of the deceased, or allow execution proceedings, unless probate is obtained.
For the purpose of realization of the debts of the deceased, an executor who had not obtained the probate might obtain a certificate under the Administrator General’s Act, 1963, or a succession certificate under the Indian Succession Act, 1925.
B. In case a Muslim dies intestate and letters of administration have been obtained, then the assets of the deceased vest in the administrator. The administrator is the legal representative of the deceased. An administrator is required to do the following:
(a) To collect the assets and debts of the deceased,
(b) To pay all the charges against the estate, such as funeral expenses,
(c) To pay the debts, and,
(d) To distribute the balance among the heirs.
C. When a Muslim dies without appointing an executor, or dies intestate, and no letters of administration have been obtained, then the property of the deceased vests in the heirs. In such a case the heirs are also the legal representatives of the deceased.
But neither a decree can be passed against the debtors of the deceased, nor can execution proceedings be launched against judgment-debtors of the deceased unless: (i) a certificate is obtained under the Administrator General’s Act, or (ii) a succession certificate is obtained under the Indian Succession Act, 1925.
When the estate vests in the heirs it vests in them not jointly but in severalty as from the time of the death of the deceased in proportion to their respective shares in the estate. They hold it subject to the payment of the charges and debts in proportion to their shares in the estate, and also subject to the payment of legacies, if any, up to the bequeath able one-third.