What are the Disabilities Affecting a Muslim in Inheriting Property?

The following are the disabilities affecting a Muslim in inheriting property:

(1) Slavery; (2) Infidelity, i.e., conversion to another religion; (3) Homicide; and (4) Illegitimacy.

1. Slavery:

Under the strict Muhammadan Law (both Sunni and Shia), even a slave wife could not succeed to the property of her husband. But since slavery has been abolished by Act V of 1843, slavery as a ground of disability is now only of academic interest.

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2. Conversion to another Religion:

Infidelity or change of religion (Kufr) was a ground of disability affecting a Muslim in inheriting property. Those who were born in a different faith, as well as those who had abjured Islam, were excluded from imheritance. But since the passing of the Freedom of Religion Act, 1850, conversion has ceased to be an impediment. Now a Muslim does not lose his right of inheritance by relinquishing his religion.

3. Homicide:

According to Sunni law, a person who causes the death of another either intentionally or accidentally cannot succeed to the latter. According to Shia law, however, homicide, to be an impediment to inheritance, must be intentional, and not accidental.

Problems:

1. A, a Shia, dies leaving a son B, a grandson С by B, and a brother D. A’s death occurred in a motorcar accident while the car was driven by В in a rash and negligent manner. On A’s death, D files a suit against В and С claiming the estate of A and contending that В and his branch are excluded from inheritance as В had killed A.

Ans:

Here, D must fail. According to Shia law, homicide, to be an impediment to succession, must be intentional. In the present case, В has caused A’s death accidentally. В is, therefore, not excluded from inheritance.

2. A, a Sunni woman, is found guilty of having killed her husband through mistake. Can A succeed to the property of her husband? Will she succeed if she were a Shia?

Ans:

Here, A cannot succeed to the property of her husband, as according to Sunni law, a person who causes the death of another cannot succeed to the property of that person, although the death may have been caused accidentally. However, she would succeed if she were a Shia, as the death was not caused intentionally.

4. Illegitimacy:

An Illegitimate Child:

(i) Is not entitled to inherit at all, according to the Shia law;

(ii) Can inherit from the mother and her relations in the absence of legitimate issue, but, can, in no case, inherit from the father or his relations, according to the Sunni law.

An Illegitimate Child:

(i) Is matris filius, according to the Sunni law, and as such, in the absence of a legitimate issue, it inherits from its mother and her relations, and they inherit from the child; it cannot inherit from its putative father or the relatives on the father’s side;

(ii) Is nullius filius, according to Shia law, and therefore it does not inherit even from its mother and her relations; they also cannot inherit from it.

Under Shia law, unlike Sunni law, illegitimacy is a bar to succession, both to the father and mother. An illegitimate child is regarded as nuillius filius, as owing no relationship to either of its parents, and therefore, incapable of inheriting from either.

Problem:

A Hanafi Muslim repudiates his wife by three pronouncements in the same breath in these terms, “I divorce you…I divorce you…I divorce you…” The parties afterwards live together and 5 children are born to them, whom the father acknowledges as legitimate and then dies. What are the rights of such children in the father’s estate?

Ans:

Here, the children are illegitimate, as the repudiation is irrevocable, and Islam does not recognise acknowledgement of legitimacy. The children cannot inherit. (Rashid Ahmed v. Anisa Khatun discussed in an earlier Chapter.)

Physical or Mental Defects and Unchastity, No Bar to Inheritance:

Physical defects or disease, insanity and unchastity do not constitute any impediment to succession in Muslim law. Thus, want of chastity in a daughter, before or after the death of her father, or whether before or after her marriage, is no bar to succession. Nor does a widow lose her right to a share in her husband’s estate by reason of unchastity in her husband’s life-time. She would lose her right only if she is divorced by the husband.