SOME MISCONCEPTIONS OF ANGLO-MOHAMMEDAN LAW RELATING TO SUCCESSION TO THE ESTATE OF A DECEASED MUSLIM DYING INTESTATE

SOME MISCONCEPTIONS OF ANGLO-MOHAMMEDAN LAW RELATING TO SUCCESSION TO THE ESTATE OF A DECEASED MUSLIM DYING INTESTATE deceased becomes prompt and payable at once in order to free his soul from the sin of leaving the debt outstanding. The sin of such a defaulting debtor does not visit on his heirs for the simple reason, so repeatedly enunciated in the Qur'an [8] that the sins of a believer are his own personal responsibility and do not devolve on others. That is why the heirs are not liable to pay the debts of the deceased personally. It is obligatory (wajib) on the heirs to pay the debts out of his estate or even charitably without delay and earn spiritual reward in order to rescue him as Qadi Khan (d. 592/1196) says, "from the fires of the next world". [9] 7. In order to enable the heirs to give effect to his needs and requirements, especially to the payment of his debts and execution of his legacies, the law has ordained representation (khalifah). Each one of the heirs is his representative (khalifah) in his place(ga' im maqam) "As though he were alive" and "As though he were himself the deceased [10]." Therefore, anyone of the heirs alone may become plaintiff or act as a defendant in actions brought on behalf of or against the deceased person [11]. The decree obtained by the plaintiff heir establishing the right of the deceased to property will establish the right of all the other heirs in it. Similarly a decree obtained by a creditor against anyone defending heir in possession of the estate establishing the debt of the deceased by proof will be binding on the other heirs and the estate. This is because each one of the heirs is a common representative (khalifah) of the deceased and the rives his common title of representation from him. 8. Reverting now to the rules of succession according to the Anglo-Mahomedan law listed in paragraph 2 above, rule (1), provides that the heirs take their fractional shares in the estate subject to and simultaneously with their liability to satisfy their share of the debts of the deceased proportionate and to the extent of their shares in the inheritance. This is a misconception of the Muslim law, according to which the heirs take their shares, not subject to, but after the payment of the debts. In the meanwhile, the debts are considered as owing by the deceased himself and not by his heirs, who do not become debtors in place of the deceased because the debts do not devolve and are not transmitted to his heirs on death. It is the estate of the deceased which alone is answerable for his debts. Therefore, strictly speaking there is no such rule as the liability of the heirs for the debts of the deceased The debts are also not divisible among the heirs like the inheritance because they attach to the estate as a whole and not to fractions of it. But among the heirs themselves, inter se, the debts get divided, as for example, after the heirs have divided the estate and each heir becomes owner of specific property falling to his lot and then a creditor recovers his whole debt from the share of one heir leaving him with less than his proper share of the estate, he would be entitled to contribution from his co-heirs for their shares of the debt paid by him on their behalf. It is in such cases that one speaks of the liability of the heirs to pay a share of the debts inter se in proportion to their shares in the inheritance. 9. Rules (2) and (3) may be discussed together as both rules permit the heirs, since the estate devolves upon them at the moment of death, to distribute the estate among themselves and transfer or deal with their own shares at any time and pass a good title to the bona fide transferee for value, not withstanding any debts that might be due from the deceased. This is a gross misconception of the Muslim Law, according to which the heirs have no inheritance until after payment of the debts and is a violation of the Qur'anic injunctions enunciated in Sura Al-Nisa (iv: 11, 12), "after the legacies he may have bequeathed or debts." Moreover, the Muslim law is that as the estate is charged or is pledged to the creditors, the heirs have no right whatever to distribute or divide the estate or deal with their shares until the estate is freed from the debts and the charge or the pledge is redeemed. Otherwise, the creditors have an absolute right to annul their division and transactions with and follow the property in the hands of the transferee. It is true that the solvent estate devolves upon the heirs at the moment of death notwithstanding the debts. But, this is to avoid an abeyance of ownership if the devolution of the estate having an heritable surplus is suspended until payment of the debts. Nevertheless, the heirs cannot effectively exercise their rights of ownership until after payment of the debts and the legacies. 10. Rule (4) of the Anglo-Mahomedan law provides that as the share of each heir in the estate is separate and independent of the shares of the other heirs, a decree obtained by a creditor against some only of the heirs who are in possession of the whole or part of the estate will not be binding on the heirs who were not impleaded in the suit and their shares will not be affected. This rule is based on the ruling in the landmark decision in the Jafri Begum's case that a claim by a creditor against the heirs in a court of law is to be regulated by the civil procedure governing the action and ordinarily, the court does not regard a decree binding upon a person who was not impleaded in the action. This rule of civil procedure will not be applicable to the substantive rule of the Muslim personal law according to which each heir represents the deceased as well as his co-heirs in an action by the creditor against the heir in possession of the estate. The heir is sued not because he is an independent debtor liable to pay proportionate share of the debts, but because he is a detainee of his property and is in possession of it. A decree obtained on proof of debt of the deceased will be binding on the estate and all the heirs including the absent heirs because the heir sued, like every other heir, is a common representative (khalifah) of the deceased and derives his common title of representation from him. Therefore the heir sued represents the interest of all other absent heirs. The misconception of the rule in Jafri Begum's case has arisen because the heir is treated as an independent debtor, which he is not, and consequently will not represent the absent heirs who have not been impleaded in the suit. 11. As stated earlier, the sharp conflict of decisions on this question has now been settled by the Indian Supreme Court in part, by invoking section 52 read with section 2(11), Civil Procedure Code, 1908, in the case of Mohd. Sulaiman [12] following Jafri Begum's case that a claim by a creditor to recover his debt against an heir in possession of the estate is to be governed by the civil procedure of the Court trying the action, and not by the Muslim personal law; that a decree obtained by a creditor against some only of the heirs in possession of his estate before its distribution bona fide believing them to be the only legal representatives of the deceased, will be binding on the heirs not impleaded in the action, in the absence of fraud or collusion or a special defence available to the absent heirs which was not or could not have been pleaded in the earlier action. 12. Finally with regard to Rule (5), according to the Muslim law rule, an unpaid creditor who appears after the heirs have divided the estate, has the right to recover his whole debt out of the property of any heir which has fallen to his lot and not merely a share of the debt proportionate to his share of the estate. The reason is that debts precede inheritance and the heirs have no absolute right to the property of the deceased until all his debts have been discharged. The Anglo-Mahomedan law which limits the right of a creditor to recover only a share of the debt from any one heir, is contrary to the Muslim law and violates the principle of the sanctity of the integrity and unity of the debt. 13. What then is the cause of the divergence of the rules of succession between the two laws and why had the British Indian Courts failed to apply the Muslim law in their decisions while formulating the rules of succession? The rules of the Anglo-Mahomedan relating to the succession, listed in paragraph 2 above, were formulated by the High Courts of British India in the latter half of the nineteenth century [13] especially after 1864, when the Native Law Officers ceased to be consulted on questions of Muslim law referred to them for opinion. Thereafter, the British and Indian judges were left to rule on questions relating to succession and administration on very meager information of the law in the absence of adequate textbooks or translations of Arabic texts on fiqh. Hence the judges confessed difficulty of knowing what the correct law was. As a result, concepts of English law relating to administration of estates and of executors of personality and heirs- at-law of realty were relied upon. Thus for example, by equating the Muslim heir like his English counterpart, he was allowed to freely deal with the estate and pass a good title to a bona fide purchaser for value even before paying the debts of the deceased, thereby violating the fundamental Quranic injunctions that the heirs have no inheritance until after payment of the debts. In some cases the rules of succession laid down were arbitrary and foreign to the Muslim law. In other cases they decided on English principles of equity + justice and good conscious. In none of the earlier cases in which the rules of succession were formulated, and even today, including the landmark case of Jafri Begum (1885), is there any hint of awareness of the basic Muslim theory underlying the rules of succession on the basis on which the other subsidiary rules follow logically, namely the existence of the deceased in the succession as owner of his property by legal fiction and liable for the payment of his debts while the estate represented him before the opening of the succession. There was also be mention of this theory in any of the textbooks available at that time as they dealt with only a dissected portion of the Muslim Personal Law and not of any principle of jurisprudence, nor any translation of Arabic text in the original was available. The Courts missed the spirit of the Muslim law and the religious and spiritual significance and the importance and urgency to discharge the debts of the deceased paid out of his estate. 14. The upshot of this discussion in that the present law of succession and administration of the estate of a Muslim person dying intestate is a misconception and misrepresentation of the Muslim law according to the Shari'ah and is very unsatisfactory. Reversal to the principles of the Muslim law is clearly a necessity. The possibility of making the administration of estates compulsory in cases where the value of the estate is, say, half a million Rupees. More thorough measures have been taken in other countries for compulsory administration of the estate, for example, in Sri Lanka where the estate exceeds in value Rupees 2,500 administration of the estate is compulsory. In Malaysia it is necessary to take out letters of administration of a deceased Muslim who leaves assets exceeding 500 dollars. In Iraq the payment of the debts of a deceased Muslim is safeguarded by drawing up an inventory of his estate by the Shari'ah Courts in certain defined cases. In Iran, Article 670 of the Civil Code provides that the liabilities shall be discharged in their proper order within two months of the death of the deceased otherwise their transactions of the heirs are invalid. REFERENCES [1] Jafri Begum v. Amir Muhammad Khan (1885) ILR All. 822. [2] Sec. 42. Mulla, Principals of Mahommedan Law. Pakistan Edition by Dr. M.A. Manikin. (1955). [3] Sec. 44, Mulla, ibid. [4] Mulla, ibid., p. 56. [5] Pirthi Pal Singh v. Husaini Jan (1882) ILR 4 All. 361. [6] In European Jurisprudence 'Dead men are no longer persons in the eye of the Law. They have laid down their legal personality with their lives, and are now as destitute of rights as liabilities. They have no rights because they have no interests.... They do not even remain the owners of their property until their successors enter upon their inheritance..." Sir John Samond, Jurisprudence, 9th Edn., London, 1937, p.420 [7] Hidayah iii, p.611. [8] ii: 286; iii : 25: xxxiv : 30,41,etc. [9] Qadi Khan, Fatawa iii p. 291. [10] Ibn Nujaym (d. 970/1563), "Al -- Ashbah wa n -- Nazair" ii p 245 [11] Article 1642 of the Majallah "In the case of a deceased person one of the heirs alone may become plentive or act as defendant, in actions brought on behalf of or against such deceased person..." [12] Muhammad Sulaintan v. Muhammad Ismail AIR 1966 SC 792. [13] Campbell v: Delany (1863) Marshall's Report, p.509; Syed Shah Enayet Hussein v. Ramzan Ali (1868) 1 Beng. LR p.172; Mt. Wahid-un-Nissa (1870) 6 Beng. LR p.54; Assamathem Nessa Bibee v. Roy Latchmeeput Singh (1878) ILR 4 Cal. 142; Bazayet Hossein v. Dooli Chand (1878) 5 IA 211; Jaffri Begum v. Amir Mohammed Khan (1885) ILR All. 822 and Bussunteram Marwary v. Kamaluddin Ahmed ILR 11 Cal. 421.