Muslim Inheritance Law in India: Shares Without a Will

When a Muslim in India dies without a will, the estate is divided by Muslim personal law, and the fractions each relative receives are not written down in any Act of Parliament. Parliament passed one short statute on the point, and that statute does the opposite of what most people expect: instead of listing shares, it points the courts away from itself and towards uncodified jurisprudence. This page explains what that means for a family sitting down to work out who gets what.

Three things decide the outcome.

• The statute picks the rule book, not the numbers. The Muslim Personal Law (Shariat) Application Act, 1937 says that in questions of intestate succession where the parties are Muslims, the rule of decision shall be Muslim Personal Law (Shariat). It stops there.
• The actual fractions come from classical jurisprudence. A widow taking one-eighth, a mother taking one-sixth, a son taking twice a daughter: none of those numbers appear in an Indian statute. They come from the Hanafi and the Shia schools of Muslim law as applied by Indian courts.
• Sunni and Shia rules are not the same. They agree on most headline fractions. They diverge sharply on what happens to whatever is left over after the fixed shares are paid, and on whether distant relatives can push a daughter aside.

Before any of it happens, the estate has to be cleaned up. Funeral expenses come out first, then the debts of the deceased, then any valid legacy. Only the balance is divided among the heirs.

The names below are invented purely to carry the arithmetic. Treat the figures as an illustration of method, not as advice on your own family.

Farid dies in Bhopal without a will. After his funeral costs and his outstanding loans are settled, the net estate is Rs 96,00,000. He is survived by his widow Nasreen, his mother Zubaida, two sons Imran and Sohail, and one daughter Ayesha.

Step 1. Pay the fixed shares.

• Nasreen, the widow, takes one-eighth because Farid left children. That is Rs 12,00,000.
• Zubaida, the mother, takes one-sixth because Farid left children. That is Rs 16,00,000.

Step 2. Work out the residue.

Rs 96,00,000 minus Rs 12,00,000 minus Rs 16,00,000 leaves Rs 68,00,000.

Step 3. Divide the residue among the children.

Sons and daughters take the residue together, with each son counted as two units and each daughter as one. Two sons and one daughter make five units. Rs 68,00,000 divided by five is Rs 13,60,000 per unit.

Worth noting: this particular family divides the same way under both Sunni and Shia rules. Where a son is alive, the two schools reach the same figures. The divergence shows up in other family shapes, and there is a second worked example further down that shows exactly where.

It is useful to see how little there is. The Muslim Personal Law (Shariat) Application Act, 1937 is Act No. 26 of 1937, dated 7 October 1937, and it runs to six sections in total:

Section 2 is the operative one for inheritance. Its language is that notwithstanding any custom or usage to the contrary, in all questions save questions relating to agricultural land regarding intestate succession, special property of females, marriage, dissolution of marriage, maintenance, dower, guardianship, gifts, trusts and wakfs, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

Read that again and notice what is missing. There is no schedule of heirs. There is no fraction. There is no table. Search the whole Act and you will not find the words one-eighth or two-thirds anywhere. That is not an oversight; it is the design. Parliament chose to apply an existing body of religious jurisprudence rather than to codify it, which is why Muslim succession in India has no equivalent of the Hindu Succession Act schedules.

Two further points that families get wrong:

• Section 3 is not about shares. It is a declaration mechanism. A person who satisfies the prescribed authority that he is a Muslim, competent to contract, and resident in India may file a declaration in the prescribed form, after which section 2 applies to him and his minor children with adoption, wills and legacies added to the list. It changes the scope of section 2 for that declarant. It does not create or alter any inheritance fraction. Anyone quoting “section 3” at you for a share fraction is quoting the wrong section.
• Agricultural land sits outside the Act. Section 2 expressly carves out questions relating to agricultural land from its own rule of decision. That does not mean personal law can never touch farmland, but it does mean the Act itself does not compel it, and your State land-revenue and tenancy law has to be checked. Kerala is the exception: Kerala substituted its own version of section 2 without the agricultural-land carve-out, by section 3 of Kerala Act 42 of 1963.

Also on extent: the words excluding Jammu and Kashmir were removed from section 1 by the Jammu and Kashmir Reorganisation Act, 2019, with effect from 31 October 2019, so the Act now runs there too. A separate proviso inserted by Act 26 of 1968 keeps the Act away from the Renoncants of the Union territory of Puducherry.

Classical Muslim inheritance sorts heirs into tiers. The first tier is the sharers, who take a fixed fraction off the top. The second tier is the residuaries, who divide whatever is left. If sharers exist but no residuary does, the remainder generally goes back to the sharers rather than to the state.

The headline fractions below are the standard Hanafi positions applied by Indian courts. They are jurisprudence, not statute, so no section number is attached to any of them, and none can honestly be attached.

Two cautions on that table. First, refinements exist for particular survivor combinations, especially where a spouse and both parents survive together and no child does. Those refinements change the mother's figure. Second, more distant sharers such as uterine brothers and sisters, full sisters, and grandmothers have their own fractions that are not listed here. Both are reasons to have the final arithmetic confirmed by a qualified lawyer or scholar before anyone signs a release.

A structural point that surprises people: there is no joint family or coparcenary in Muslim law. Nobody acquires a right by birth. Every heir takes a defined, separate fraction the moment the owner dies, as a co-owner in common. That is a real difference from the Hindu law framework that most Indian property paperwork is built around, and it is worth spelling out to a bank or a revenue clerk who assumes otherwise.

The rule that a Muslim may bequeath only about one-third of the net estate, and needs the consent of the other heirs to go beyond it, is a firmly established rule of Muslim personal law. It is jurisprudence, not a statutory section, and you will not find it in the 1937 Act. Two practical consequences follow:

• A bequest to a person who is already an heir generally requires the consent of the remaining heirs, because otherwise a testator could reshuffle the fixed shares through the back door.
• A gift made during the lifetime of the owner, and completed by delivery of possession, is a different transaction from a will. It is not subject to the one-third ceiling. Families who want to provide for someone the fixed shares would miss often use this route while the owner is alive.

The reason a Muslim will is governed by personal law rather than by the general Indian statute is section 58(1) of the Indian Succession Act, 1925, which provides that the testamentary succession Part of that Act does not apply to the property of a Muhammadan. If you are drafting a will at all, see how to register a will in India.

Nothing in the fractions above transfers a single rupee by itself. This is the sequence a family actually walks through.

1. Death certificate. Issued by the municipality, panchayat or registrar of births and deaths. Every other document depends on it.

2. Legal heir certificate. Issued by the Tahsildar or the local revenue authority, and the form and fee are set by your State. It names the surviving family and is used for pensions, provident fund, gratuity, service benefits and insurance claims. It is not a title document and it does not decide shares. See how to apply for a legal heir certificate.

3. Succession certificate, for debts and securities only. This comes from the District Judge under Part X of the Indian Succession Act, 1925. Section 371 puts jurisdiction with the District Judge within whose limits the deceased ordinarily resided, or where the property is found if there was no fixed residence. Section 372 sets out what the petition must state, including the time of death, the residence, the near relatives and their addresses, and the right claimed. Section 381 makes the certificate conclusive against the people who owe the debts, and gives them an indemnity for paying in good faith.

Read the definition in section 370 carefully, because this is where most families waste a year. “Security” for this Part covers promissory notes, debentures, stock or other securities of the Central or a State Government, stock or debentures of or shares in a company, debentures issued by a local authority, and anything else a State Government notifies as a security for this Part. A succession certificate does not cover a house, a flat or land. For a step-by-step walkthrough see applying for a succession certificate.

4. Letters of administration, where required. Section 218 of the Indian Succession Act, 1925 deals with this expressly: where the deceased died intestate and was a Muslim, administration of the estate may be granted to any person who, under the rules of distribution applicable to that deceased, would be entitled to the whole or any part of the estate. Where several such people apply, the court chooses. Where nobody applies, it can go to a creditor. See letters of administration when there is no will.

5. Mutation of immovable property. For land, a flat or a house, the route is mutation in the revenue or municipal record, under your State law. Start at mutation of property after death. Do not mistake it for a title transfer: an entry in the revenue record is a fiscal record for collecting tax, and it does not by itself prove ownership. That point is set out at why mutation does not confer title.

6. Banks, insurance and provident fund. A nominee is a receiver of the money, not the owner of it. The nominee holds it for the heirs entitled under personal law. See claiming a deceased bank account with no nominee and nominee versus legal heir in insurance.

7. Settle it on paper. Where all the heirs agree, a family settlement or partition deed records the division and is far cheaper than litigation. Where they do not agree, the remedy is a partition suit in the civil court. If you later sell inherited property, plan for capital gains tax on inherited property.

Dr. Shrawan Kumar Pathak puts the practical order simply: settle the debts, get the heirs listed on an official certificate, and only then argue about fractions. Families who start with the fractions usually end up doing the paperwork twice.

The two schools agree on the fixed fractions in the table above. They part company over the residue and over who can be excluded.

• Sunni, meaning Hanafi in most of India. After the sharers are paid, the residue goes to the residuaries, and the residuary class is built around male agnatic relatives. A brother, a son's son, a paternal uncle and other agnates can therefore take a slice even when a daughter survives. Only if no residuary exists at all does the remainder return to the sharers, and only after that does a further class of distant kindred come into the picture.
• Shia, meaning Ithna Ashari in most of India. Heirs are grouped into classes by nearness. Parents and children and their descendants form the first class; grandparents, brothers and sisters and their descendants form the second; uncles, aunts and their descendants form the third. A surviving member of a nearer class excludes the whole of the remoter class. Husband and wife are outside this scheme and always inherit. There is no built-in preference for male agnates over female relatives, so the residue tends to stay within the immediate family.

Second worked example. A person dies leaving a net estate of Rs 60,00,000, one daughter, no son, no surviving parent, no spouse, and one full brother.

Same family, same estate, two completely different outcomes. This is why nobody should describe one school's answer as “the Muslim rule”. Establish which school the family follows before anyone puts a number on paper.

One more divergence worth knowing about. Under Hanafi jurisprudence, the child of a son who died before the grandfather is excluded by a living son of the grandfather. That is the single most painful surprise in this area of law and it is why elderly owners who want to look after an orphaned grandchild are usually advised to make a lifetime gift or a bequest within the one-third limit. The Shia position on grandchildren of a predeceased child is different, and if that is your situation the school matters enormously. Get it confirmed rather than relying on a summary.

Goa is the standing exception to almost every statement on this page. The Portuguese Civil Code of 1867 remained in force after 1961 because section 5(1) of the Goa, Daman and Diu (Administration) Act, 1962 continued all laws that were in force immediately before the appointed day until amended or repealed.

Goa has since consolidated that inheritance law into its own statute: the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012, notified as Goa Act 23 of 2016 on 19 September 2016, described in its own preamble as an Act to consolidate and amend the law of intestate and testamentary succession, notarial law and the laws relating to partition of an inheritance.

Two features make it genuinely different. First, section 1(4) applies the Act by descent and residence rather than by religion, covering all persons who were governed by the 1867 Civil Code, people born in Goa of such parents, and others who opt in. Religion is not one of the tests. Second, the Act uses a legitime, a forced share that an owner cannot will away: where the owner leaves children or descendants, their legitime is half of the inheritance. If your family property sits in Goa, the fractions on this page are the wrong starting point.

Legal heir certificates and mutation entries are the two stages where families lose months to a file that simply stops moving. Both sit with a public authority, which makes the delay itself an RTI question. Ask the revenue office or municipal body for the daily progress report on your file, the name and designation of the officer currently holding it, the date it reached each desk, and the reason recorded for any pendency. A specific request about file movement is far harder to deflect than a general complaint, and the reply also becomes evidence if you later have to escalate.

For how to frame the request, the appeal, and the escalation, work through The RTI Playbook. Related family-law reading on this site includes Muslim divorce, maintenance and mehr rights. For the information-law side, read the text of the RTI Act 2005 and browse the RTI case database.

Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 provides that in questions of intestate succession where the parties are Muslims, the rule of decision shall be Muslim Personal Law (Shariat). Section 29(1) of the Indian Succession Act, 1925 works from the other side and says that the intestate succession Part of that Act does not apply to the property of a Muhammadan. So the general Indian intestacy rules step aside and personal law takes over.

Nowhere, and that is the honest answer. The 1937 Act has six sections and none of them contains a fraction. The Indian Succession Act, 1925 expressly excludes Muslim intestate property from its rules. The fractions are uncodified Hanafi and Shia jurisprudence applied by Indian courts. Treat any source that gives you a share fraction with a section number next to it as unreliable.

Where sons and daughters take the residue together, the jurisprudence gives each son twice the share of each daughter. Two separate points are worth being clear about. A daughter is always an heir in her own right and cannot be cut out of the estate entirely by a brother. And where there is no son, a single daughter takes one-half as a fixed share, and two or more daughters take two-thirds between them, before the residuary rules are even reached.

No. A succession certificate is granted under Part X of the Indian Succession Act, 1925 and it covers debts and securities only. The definition in section 370 lists promissory notes, government stock, company shares and debentures, and local-authority debentures. Immovable property is outside it. For a flat or land the route is mutation in the municipal or revenue record, backed by a family settlement or partition deed if the heirs agree, and a partition suit if they do not.

Not without the agreement of the heirs. The established rule of Muslim personal law limits a bequest to roughly one-third of the net estate after funeral expenses and debts, and going beyond that needs the consent of the other heirs. A bequest to someone who is already an heir also generally needs that consent. A completed lifetime gift is a separate transaction and is not subject to the one-third ceiling.

Under Hanafi jurisprudence, if any son of your grandfather is still alive, the children of a predeceased son are excluded. This is why families are advised to plan for it during the owner's lifetime, either by a gift completed with delivery of possession or by a bequest within the one-third limit. The Shia position differs, so establish which school applies before accepting any answer.

Section 2 expressly carves out questions relating to agricultural land from its own rule of decision. In practice that means you cannot assume the Act settles farmland, and your State land-revenue and tenancy legislation has to be checked. Kerala substituted its own section 2 without the carve-out, by section 3 of Kerala Act 42 of 1963, so the position there is not the same as elsewhere.

Goa runs a separate system. The Portuguese Civil Code of 1867 continued in force under section 5(1) of the Goa, Daman and Diu (Administration) Act, 1962, and Goa has since consolidated its succession law in the Goa Succession, Special Notaries and Inventory Proceeding Act, 2012, notified as Goa Act 23 of 2016. That Act applies by descent and residence, not by religion, and it uses a forced share called the legitime. Property in Goa needs advice under Goa law.

• Muslim Personal Law (Shariat) Application Act, 1937, Act No. 26 of 1937, full bare Act: https://www.indiacode.nic.in/handle/123456789/2303
• Indian Succession Act, 1925, Act No. 39 of 1925, sections 29, 58, 218, 370, 371, 372 and 381: https://www.indiacode.nic.in/handle/123456789/2385
• Goa, Daman and Diu (Administration) Act, 1962, section 5: https://www.indiacode.nic.in/handle/123456789/10105
• Goa Succession, Special Notaries and Inventory Proceeding Act, 2012, Goa Act 23 of 2016: https://www.indiacode.nic.in/handle/123456789/22176

This page explains statutes and long-settled jurisprudence in general terms. Share fractions turn on the exact list of survivors and on the school the family follows, so confirm your own numbers with a qualified lawyer before signing a release, a settlement or a sale deed.