Under Muslim law, the estate of the deceased devolves on the heirs the moment he dies, and heirs are free to distribute it among themselves at any time thereafter. “The estate of Muslim dying intestate devolves under the Islamic law upon his heirs at the moment of his death, i.e., the estate vests immediately in each heir in proportion to the shares ordained by the personal law and the interest of each heir is separate and distinct.
Each heir is under the personal law liable to satisfy the debts of the deceased only to the extent of the share of the debt proportionate to his share in the estate”. It is not incumbent upon them to postpone the distribution of assets till the debts are paid. However, each heir is liable for the debts of the deceased to the extent of his share, even after the distribution of assets of the deceased but no more.
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Suit by creditors:
ADVERTISEMENTS:
When a Muslim dies indebted, the creditors may sue the executor or administrator, and, in the absence of an executor or administrator, the heirs, for the realization of their debts. In case the estate of the deceased has not been distributed among the heirs, a creditor can execute a decree against the entire estate, irrespective of the extent of the liability of each heir. The High Courts differ as to whether a decree obtained by a creditor against some of the heir is also binding on others.
The Supreme Court has now resolved the controversy. In Daya Ram v. Shyam Sundari, Ayyangar J. said that though ordinarily the court does not regard a decree binding on a person who is not impleaded ex nomine in an action, there are certain recognized exceptions to this rule; and one of these is that where certain persons are impleaded after diligent and bona fide enquiry in the genuine belief that they are the only persons interested in the estate, the whole estate of the deceased will be duly represented by the persons who are brought on the record or are impleaded, and the decree will be binding on the entire estate.
But, the learned judge said, this rule will not apply to cases where there has been fraud or collusion between the creditors and the heirs impleaded, or where there are other circumstances which indicate that there has not been a fair or real trial, or where the absentee heir had a special defence which was not and could not be taken in the earlier proceedings. This was a case where all the parties were Hindus.
The question again came before the Supreme Court in Md. Suleman v. Md. Ismail, where the deceased was a Muslim. Three persons, A, В and C, mortgaged certain immovable properties in favour of one R. After the death of A. R filed a suit for the enforcement of the mortgage against В and С and the three widows and a daughter of A.
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The suit was decreed, and, in execution proceedings of the decree, the properties were sold at court sale and were purchased by R. R alienated these properties to some other persons. Subsequently, the plaintiff, P, claiming himself to be the son of A, filed a suit for the partition of mortgaged properties by metes and bounds, and in the alternative that he was entitled to redeem the properties or a portion thereof equal to his share in the mortgaged properties.
The plaintiffs suit was resisted by R and the alienees on the averments that the decree obtained by R was binding on P as the estate of M was fully represented in the suit by those who were in possession at that time, and that R on the basis of full and bona fide enquiries made by him learnt that the three widows and the daughter were the only representatives of A.
The court held that P was bound by the decree as estate of A was fully represented in the suit. Shah J. observed that a creditor of a Muslim dying intestate may sue all the heirs of the deceased and, where the estate of the deceased has not been distributed among the heirs, he may execute the decree against the property as a whole without regard to the extent of liability of the heirs inter se.
The creditor is not required to sue all the heirs; he may sue some of the heirs and obtain a decree against them. The decree may be enforced against individual heirs in proportion to their shares in the estate.
ADVERTISEMENTS:
The learned judge further said that it is settled that where the defendant dies after the institution of the suit, the legal representatives, the heirs so impleaded represent the estate of the deceased, and a decree obtained against them binds not only those heirs who are impleaded in the action but the entire estate, including the interest of those not brought on the record.
Recovery of debts due to the deceased:
It has been seen that a suit for the recovery of debts due to a deceased Muslim may be filed by an executor, administrator or an heir. Such a suit can be filed by an executor who has obtained probate of the will, or by an administrator to whom letters of administration have been issued.
An heir or an executor who has not obtained the probate of the will can file a suit for the recovery of deceased’s debt only if a certificate under S. 31 or S. 32 of the Administrator General’s Act, or a succession certificate under Part X of the Succession Act, has been obtained.
However, a debtor can validly pay the amount of debt to an executor who has not obtained a probate or a certificate under either Act. Similarly, a debtor is free to pay the debt to the heirs who have not obtained either certificate under the aforesaid enactments. But the payment of debt by a debtor to one or some heirs does not discharge the debt due in respect of the shares of other heirs.