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May 2011

Muslim Law — Properties purchased by female exclusively belongs to her and can be divided only between her children — No concept of jointness of nucleus.

By Dr. K. Shivaram Ajay R. Singh, Advocates
Reading Time 4 mins
[ Mukhtar Ahmad and Anr. v. Mahmudi Khatoon & Anr., AIR 2011 Jharkhand 28]

The appellant and respondents (1-6) are brothers and sisters and are governed by Hanife School of Muslim Law. The other respondents are sons and daughters of second wife and other relatives. The suit was filed by one of the sisters against the brother and other sisters to get partition with respect to certain properties.

The properties in dispute were recorded in the name of mother Bibi Jainab (first wife). The father of the appellants and defendants had executed one of the properties to his wife in lieu of dawar debt. The Trial Court held that the plaintiff was entitled to get partition. The appeal was filed contending that the Trial Court has wrongly decided the issue considering the principles of Hindu law, where a property is not the absolute property of a female, if the source, from which the property has been purchased, is proved to be of the joint family or by the husband, then it will not be considered to the property of the female. But in the Muslim law, all the properties in the name of muslim lady belong to her, irrespective of source of money, from which it was purchased. The plaintiff is the full-blood sister of the defendants, thus, the plaintiff and the defendants are the legal heirs and successors of their deceased father, Md. Yakub and deceased mother, Jainab Khatoon. The partition suit was filed for preparing of separate ‘takhta’ for the plaintiff after granting a decree of 1/12th share in the properties of her father, Md. Yakub and her mother, Jainab.

The defendant alleged that no property is joint as claimed by the plaintiff. They also claimed that after the death of their parents, the parties have amicably settled their properties and the defendant and the plaintiff was allotted specific share.

The Court referred to certain salient features of Muslim law of succession which distinguish it from modern Hindu law of inheritance, the Muslim law of succession is basically different from the parallel indigenous systems of India. The doctrine of janmswatvavada (right by birth), which constitutes the foundation of the Mitakshara law of succession, is wholly unknown to Muslim law. The law of inheritance in Islam is relatively close to the classical Dayabhaga law, though it differs also from that on several fundamental points. The modern Hindu law of succession as laid down in the Hindu Succession Act, 1956 is, however, much different from both the aforesaid classical systems; it has a remarkable proximity, in certain respects, to the Muslim law of inheritance.

Whatever property one inherits (whether from his ancestors or from others) is, at Muslim law, one’s absolute property — whether that person is a man or a woman. In Muslim law, so long as a person is alive, he or she is the absolute owner of his or her property; nobody else (including a son) has any right, whatsoever, in it. It is only when the owner dies and never before that the legal rights of the heirs accrue. There is, therefore, no question of a would-be heir dealing in any way with his future right to inherit.

The Indian legal concepts of ‘joint’ or ‘undivided’ family, ‘coparcenary’, karta, ‘survivorship’, and ‘partition’, etc., have no place in the law of Islam. A father and his son living together do not constitute a ‘joint family’; the father is the master of his property. The same is the position of brothers or others living together.

Unlike the classical Indian law, female sex is no bar to inherit property. No woman is excluded from inheritance only on the basis of sex. Women have, like men, right to inherit property independently, not merely to receive maintenance or hold property ‘in lieu of maintenance’. Moreover, every woman who inherits some property is, like a man, its absolute owner; there is no concept of either streedhan or a woman’s ‘limited estate’ reverting to others upon her death. The same scheme of succession applies whether the deceased was male or a female.

Since all properties in the name of a female belongs to her exclusively and there is no concept of jointness of nucleus or any concept that the property is purchased from joint nucleus of the head of the joint family, hence, all the properties which are exclusively purchased by sale deed by Bibi Jainab in her name can be divided only between her children. Thus, the plaintiff would be granted 1/10th share in the property belonging to Bibi Jainab. A property which was belonging to the father will be divided amongst all the 17 parties in the ratio of 1/17th each and a separate takhta would be carved out.

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