Published:  12:21 AM, 16 June 2019

Timing and sharing inherited property

Once a Muslim dies, his proprietary interest by way of assets and liabilities is referred to as his estate or legacy. It is basically "the leave behind". The Shariah rule made mandatory that the legacy left behind by the deceased Muslim must not be used in ways unacceptable to Islam. The appropriate succession laws or law of inheritance will come into effect.

It must be preserved for the rightful heirs to inherit. In other words, when a Muslim dies the ownership of his/her legacy transfers to his/her inheritors. Usually the senior male heir becomes administrator of the estate until the state is divided as per Islamic rule of inheritance.

According to the Encyclopedia of Social Sciences, "inheritance is the entity of living persons into the possession of dead person's property and exists in some form wherever the institution of private property is recognized as the basis of the social and economic system.

Inheritance is the practice of passing on property, titles, debts, rights, and obligations upon the death of an individual". It is law of Allah that after taking out burial expenses, if there are any debts owed to fellow human beings, they must be paid off and the remaining amount will be distributed amongst the various heirs.

After the death of a Muslim, there are four duties of administrator,which need to be performed. These are: (1) payment of funeral expenses, (2) payment of his/ her debts, (3) execution his/ her will, (4) distribution of remaining estate amongst the heirs according inheritance law of own religion. Recently, Supreme Court of Bangladesh has given a landmark decision that despite the will of deceased, all the hairs will get their due share as per law of their religion.

The administrator of the estate should be a free male, God fearing Muslim or person who is conscious of the fact that he too would die one day and leave behind estate and heirs. He should be a person descended from the same male ancestor, especially through the male line. The Succession Act, 1925 (section 2a) defined as "administrator" means a person appointed by competent authority to administer the estate of a deceased person when there is no executor.
Inheritance is considered as an integral part of Shariah Law.

Muslims inherit from one to another as stated in the Qur'an. Hence, there is a legal share of some relatives of the decedent in his estate and property. It is the responsibility of administrator to distribute the remainder of estate and property immediately to the relatives of the deceased according to Shariah Law.

The author knows two reference cases of petition of property of two families. One Post Master died in 1986 and left behind property for his 7 children. Two immediate successors (sons) and administrators distributed the property and all amicably accepted the partition.

The partition was verbal without any registration. Therecords in land department of ownership of the lands have been completed duringland survey by the government. Only one brother on behalf of entire family appeared before land officials during hearing  and duly get recorded the names of heirs and due shares against their name.There was no confusion, ill feeling or mistrust.

In another case of one School teacher died in 1955 and had 6 children. The sharing of state has been delayed for about 64 years and many of the children have died and some of the children and grandchildren are living in many other countries. By this time the fist administrator also died.

The present administrator find it difficult to arrange meeting of all successors numbering about 40 members and 'unable' to complete the religious and social responsibility of transfer to properly to them. The matter has created a situationfor going to court for partition suit. It is the outcome of delay in performing religious obligation and order of Almighty Allah (SWT). 

By this time matter attracted more legal procedure. The Registration Act, 1908 as amended in 2004 incorporating Clause 17- 13 (f) "instrument of partition of immovable property affected by persons upon inheritance according to their respective personal laws" should be registered with respective land department of the government. It is nice to amicably distribute parent's property by way of a registered partition deed so that each of them can mutate their property.

On the contrary, all of them together or any or some of the heirs may file a partition suit with district court for a partition of to the property that will result into wastage of valuable time and money. It is better to file partition suite by all successor together in an amicable manner, if the amicable settlement is possible. The other option is local Shalish.

One of the most important principles of administration of estate in Islam is that when all necessities of funeral, settlement of debts, remaining portion of the legacy shall be distributed among the rightful heirs immediately after funeral of the deceased. This is because any unnecessary delay in distribution of inheritance sometimes leads to many problems. There may be greedy ones amongst rightful sharers and even unqualified sharers who may use delay tactics to deprive the rightful owners.

For instance, death of rightful sharers may deprive him from enjoying the benefit of his / her shares at the time necessity. Someone may suffer for financial crisis due to partition of moveable and immovable properties on time. In some other cases it leads to litigation which may breed disharmony in a supposedly peaceful family.

The ownership of property in Muslim law comes only after the death of a person and this right is not negotiable under any influence of social and blood relationship and dilly-dally tactic.The man dominated social system has given an upper hand to sons that they can influence the sisters to give up right over their inherited property. Brothers may threaten of non-cooperation during bad times forgetting the divine relationship of brother and sister. In the current social atmosphere, sisterunwillingly agree to give up right over property to maintain the unparalleled love and affection between siblings.

The Qur'an mentions in great detail the fixed-shares of those who inherit the estate from the deceased. Failure to distribute the estate according to these guidelines set in the Qur'an constitutes a great sin and punishment from Allah. It becomes necessary upon allthe heirs of the deceased to ensure that the estate is distributed according to Islamic guidelines. There are severe warnings of punishment mentioned in the sacred Islamic texts for not distributing the estate according to Islamic law.

Once the beneficiaries and their shares, rights and liabilities are decided, the property has to be transferred in their names. There is no time limit but the duties should be completed as early as possible.

When someone inherits a property the first thing administrator need to ensure is to get it transferred in owner's name. If it's a movable property, which even includes bank balances and securities, it should be transferred in the name of the beneficiary. Similarly, if it's an immovable property, should be transferred in the name of the beneficiary in the relevant government and/or revenue records depending upon the nature of the property.

The legal heirs of the deceased may appoint amongst themselves one or find respectable person to mediate the partition of the property or the distribution can be decided mutually or can be settled by the court. It is well known that disputes related to properties are common and court cases related to ownership rights over a property can go on for decades. It has estimated that more than 3.2 million land-related cases are pending before the judiciary. Land disputes often lead to violence and criminal offenses. It is said that 80 percent of criminal offenses today stem from land disputes.

The rights of sisters on property of parents are a birth right and not donation or charity of brothers. It cannot be replaced by any other things or manner. The right of all siblings established with the death of parents and usually the elder brother become administrator. The administrator is custodian of the property for the time being.  He has responsibility of funeral of parents, settle the debts, execute the will, if any and take positive step of distribution of moveable and immovable property with due 'bantaknama' and register the bantaknama with land registration authority.

The writer is a legal economist.
E-mail: mssiddiqui2035@gmail.com

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