Partition and Succession under Muslim Law in India

Prepared by:

Patra’s Law Chambers

Kolkata Office: NICCO HOUSE, 6th Floor, 2, Hare Street, Kolkata-700001 (Near Calcutta High Court)

Delhi Office: House no: 4455/5, First Floor, Ward No. XV, Gali Shahid Bhagat Singh, Main Bazar Road, Paharganj, New Delhi-110055

Website: www.patraslawchambers.com

Email: [email protected]

Phone: +91 890 222 4444 / +91 9044 04 9044

1. Introduction: The Philosophical and Legal Foundations

The adjudication of property rights, specifically the partition and succession of estates among Muslims in India, constitutes a specialized branch of family law that operates at the intersection of classical Islamic jurisprudence (Fiqh), colonial-era statutory interventions, and modern constitutional principles. Unlike the codified systems governing other communities, such as the Hindu Succession Act of 1956, Muslim law in India remains largely uncodified, relying heavily on the interpretation of Quranic injunctions, the Sunnah (traditions of the Prophet), and a rich body of judicial precedents evolved over a century of litigation.

The fundamental premise of Islamic succession is the dispersion of wealth. The Prophet Muhammad (PBUH) is reported to have said, “Learn the laws of inheritance and teach them to the people, for they are one-half of useful knowledge.” This emphasis stems from the intricate mathematical precision with which the Quran allocates shares, ensuring that capital does not accumulate in the hands of a primogeniture heir but circulates among a wide array of beneficiaries, including women—a revolutionary concept in the 7th-century Arabian context that continues to govern modern estate distribution.

For legal practitioners and beneficiaries alike, navigating this landscape requires a departure from the concepts familiar to Indian property law, such as the “Joint Hindu Family” or “Coparcenary.” Muslim law recognizes neither birthright in property (Janmswatvavada) nor the concept of survivorship. Instead, it operates on the principle of Spes Successionis (mere chance of succession), where rights crystallize only upon the death of the ancestor. This report, prepared by the research division of Patra’s Law Chambers, serves as an exhaustive guide to these complexities, analyzing the substantive laws of inheritance, the procedural mechanics of partition suits, and the evidentiary standards established by recent Supreme Court judgments, including the landmark 2024 ruling in Mansoor Saheb (D) & Ors. vs. Salima (D).

1.1 The Statutory Anchor: The Shariat Application Act, 1937

The cornerstone of Muslim property adjudication in India is the Muslim Personal Law (Shariat) Application Act, 1937. Prior to this Act, many Muslim communities in India, particularly in the Punjab and Malabar regions, were governed by local customary laws that often excluded women from inheritance in favor of male agnates. The 1937 Act was a legislative intervention designed to restore the application of pure Islamic law.

Section 2 of the Act mandates that notwithstanding any custom or usage to the contrary, in all questions regarding intestate succession, special property of females, marriage, dissolution of marriage, guardianship, gifts, trusts, and wakfs, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).¹ This provision effectively abrogated customary practices that denied women their Quranic shares. However, it is crucial to note the parenthetical exception in Section 2 regarding “agricultural land.” While the Central Act initially excluded agricultural land to respect the legislative competence of provinces, subsequent state amendments (e.g., in Tamil Nadu, Andhra Pradesh, and Kerala) have extended Shariat application to agricultural lands as well. In states without such amendments, succession to agricultural land may still be governed by local tenure laws, a nuance that requires careful due diligence by legal counsel.

1.2 The Concept of Property (Mal)

In Muslim legal theory, property (Mal) comprises all forms of assets—movable and immovable, ancestral and self-acquired, corporeal and incorporeal. Unlike Hindu law, which distinguishes between Ancestral Property (where a son has a birthright) and Self-Acquired Property, Muslim law treats all property owned by the deceased at the time of death as one single estate. Whether the property was inherited by the deceased from his father or purchased by his own earnings, it devolves upon his heirs in identical shares. This unification of property types simplifies the initial classification but places a heavy burden on the administration of the estate, as all debts, funeral expenses, and legacies (wills) must be cleared from the gross estate before any heir can claim their specific fractional share.

2. The Nature of Ownership and Co-Ownership

To understand partition, one must first comprehend the nature of the “jointness” that exists among Muslim heirs before a partition takes place. This is often a source of confusion for practitioners trained primarily in general civil law.

2.1 Absence of Joint Family and Coparcenary

The Supreme Court of India has repeatedly clarified that the concept of a “Joint Mohammedan Family” is alien to Muslim law. There is no “Karta” (manager) who represents the family, and no member can act on behalf of others without explicit authorization. In Mansoor Saheb (D) & Ors. vs. Salima (D) ⁵, the Court reiterated that heirs succeed to the estate as Tenants-in-Common with specific, fixed shares.

This distinction is jurisprudentially significant:

• Joint Tenancy (English/Hindu Law): Characterized by the four unities (title, time, interest, possession) and the Right of Survivorship. If one joint tenant dies, their interest passes to the surviving tenants.
• Tenancy-in-Common (Muslim Law): Characterized only by the unity of possession. Upon the death of a Muslim, the legal title passes immediately to the heirs. A daughter, for instance, becomes the owner of her 1/8th or 1/2 share the moment her father dies. She does not “wait” for partition to become an owner; she is already an owner of an undivided specific share. If she dies before the physical partition, her specific share devolves upon her own heirs, not upon her brothers.⁶

2.2 The Doctrine of Mushaa

The term Mushaa derives from Shuyuu, meaning confusion or commixture. It refers to an undivided share in a property. While Mushaa creates complications in the law of Gifts (Hiba), where the gift of an undivided share is often considered irregular (Fasid), in the law of inheritance, Mushaa is the default state.

When an ancestor dies, the estate automatically becomes Mushaa among the heirs. Each heir owns a fractional interest in every grain of sand and every brick of the house. No heir can point to a specific room and claim, “This is mine,” until a partition by metes and bounds is effected. However, they can sell, mortgage, or gift their “undivided share” (e.g., “I sell my 1/8th share in this house”). Such a transfer is valid, and the transferee steps into the shoes of the heir, acquiring the right to sue for partition.

2.3 Vesting of Inheritance

The principle of Nemo est haeres viventis (a living person has no heir) is strictly applied. A son has no legal interest in his father’s property while the father is alive. He cannot restrain his father from alienating the property, nor can he claim a “partition” during the father’s lifetime. This is a critical distinction from Hindu law, where a son can demand partition from his father. Under Muslim law, any distribution of property by a father during his lifetime is not “inheritance” or “partition” but must be classified as a Gift (Hiba), subject to the strict rules of delivery of possession.⁵

3. General Principles of Inheritance (Hanafi Law)

The vast majority of Muslims in India adhere to the Hanafi school of Sunni jurisprudence. The Hanafi system is often described as one of the most elaborate and equitable systems of succession, balancing the rights of immediate family (spouse, children, parents) with the broader kinship network.

3.1 Administration of the Estate

Before any partition or calculation of shares can occur, the estate must be administered. The following charges must be paid in order of priority:

1. Funeral Expenses: Reasonable costs for the burial and last rites, without extravagance.
2. Debts: All proven debts of the deceased, including unpaid dower (Mahr) owed to the widow. The dower is treated as an unsecured debt and has priority over the rights of heirs.⁸
3. Legacies (Wasiyat): A Muslim can bequeath only up to one-third of the surplus estate (after debts) through a Will. Any bequest in excess of one-third, or a bequest to an heir (e.g., giving extra to one son), is invalid unless consented to by all other heirs after the death of the testator.⁵

Only the “Net Estate” remaining after these deductions is available for partition among heirs.

3.2 Classes of Heirs

The Hanafi scheme creates a hierarchy of heirs. The estate is not distributed to everyone; rather, it follows a strict order of priority.

A. Class I: The Sharers (Quranic Heirs / Ashab-ul-Furud)

These are the primary heirs whose shares are fixed by the Quran. They are the first to take their entitlement. There are 12 Sharers:

1. Husband: Entitled to 1/4 of the estate if the wife has children (or grandchildren). If she has no children, he takes 1/2.¹
2. Wife: Entitled to 1/8 if the husband has children. If no children, she takes 1/4. If there are multiple wives, they share this 1/8 or 1/4 equally among themselves.
3. Daughter: A single daughter takes 1/2. Two or more daughters share 2/3 Crucially, a daughter is a Sharer only if there is no son. If a son exists, she ceases to be a Sharer and becomes a Residuary.⁴
4. Father: Takes 1/6 if there are children. If there are no children, he takes as a Residuary.
5. Mother: Takes 1/6 if there are children or two or more siblings of the deceased. She takes 1/3 if there are no children and not more than one sibling.¹
6. Paternal Grandfather: 1/6 (Substituted for father if father is dead).
7. Grandmother (True): 1/6 (Maternal or Paternal, subject to exclusion by Mother).
8. Son’s Daughter: 1/2 or 2/3 (Takes the place of a daughter if no daughter exists).
9. Full Sister: 1/2 or 2/3 (In the absence of children, father, or grandfather).
10. Consanguine Sister: Inherits in the absence of full sister.
11. Uterine Brother: 1/6 (one) or 1/3 (plural).
12. Uterine Sister: 1/6 (one) or 1/3 (plural).

B. Class II: The Residuaries (Asaba)

Once the Sharers have been paid, the remainder (Residue) of the estate goes to the Residuaries. These are typically male agnates (relations through males).

• The Son: The son is the highest residuary. He does not have a fixed share (like 1/6 or 1/8). He takes whatever is left.
• The Daughter as Residuary: This is a pivotal concept. If the deceased leaves a Son and a Daughter, the Daughter is pulled out of the “Sharer” category and becomes a “Residuary” with her brother. They divide the residue in a 2:1 ratio (Double share to the male).¹⁰
  • The Logic of 2:1: This apparent disparity is grounded in Islamic financial obligations. A Muslim man is legally obligated to maintain his wife, children, and elderly parents, and pay dower (Mahr) upon marriage. A Muslim woman has no such financial obligations; her inheritance is entirely hers to keep, while her maintenance is the responsibility of her husband or father. Thus, the male is given a larger share to offset his wider financial liabilities.

C. Class III: Distant Kindred (Dhawu-ul-Arham)

If there are no Sharers and no Residuaries, the estate devolves upon Distant Kindred. These are blood relations who are neither Sharers nor Residuaries, such as daughter’s children, sister’s children, and maternal uncles.¹¹ In India, cases involving Distant Kindred are rare because usually there is at least one Sharer or Residuary.

4. Complex Arithmetic Principles: Aul and Radd

The rigid fractional nature of the shares (1/2, 1/6, 1/8) often leads to mathematical anomalies where the sum of shares does not equal Unity (1). Muslim jurisprudence developed two doctrines to resolve this, which are regularly applied by Indian courts.

4.1 The Doctrine of Aul (Increase)

This doctrine applies when the total sum of the specific shares exceeds Unity (1). Since the estate cannot be more than 100%, the shares of all heirs are reduced proportionately to accommodate everyone.

• Mechanism: The denominator of the fractions is increased to match the sum of the numerators.
• Legal Effect: No heir is excluded; everyone suffers a proportionate reduction.

4.2 The Doctrine of Radd (Return)

This doctrine applies when the sum of shares is less than Unity (1) and there are no Residuaries to take the leftover surplus. The residue is “returned” to the Sharers in proportion to their rights.

• Exception: Under classical law, the Husband and Wife were not entitled to the Return (Radd). The surplus would go to Distant Kindred or the State (Bait-ul-Mal). However, in modern Indian practice, in the absence of other heirs, courts often allow the Return to the spouse to prevent escheat to the government.¹⁴

5. Partition: Procedure, Litigation, and Limitation

The transition from undivided ownership (Mushaa) to separate possession is achieved through Partition. In the context of Patra’s Law Chambers’ practice, this involves either a non-judicial Family Settlement or a judicial Suit for Partition.

5.1 Partition by Mutual Consent (Family Settlement)

The most amicable method is a family arrangement.

• The Instrument: A Deed of Partition is drafted, listing the specific assets allotted to each heir (Schedule A, Schedule B, etc.).
• Registration: Under Section 17 of the Registration Act, 1908, a partition deed that creates, declares, assigns, limit or extinguish any right, title or interest in immovable property of the value of one hundred rupees and upwards must be registered. An unregistered partition deed is inadmissible in evidence to prove the terms of the partition, though it may be used for collateral purposes (e.g., to prove the nature of possession).¹⁶
• Oral Partition: While Muslim law permits oral partition, proving it requires “unimpeachable testimony.” A mere memorandum recording a past oral partition does not require registration, but the distinction is fine and often litigated.

5.2 Judicial Partition: The Suit for Partition

When consensus fails, a suit is filed.

• Jurisdiction: Determined by the location of the immovable property (Section 16, CPC) and the pecuniary value of the plaintiff’s share.
• Court Fees: This is a critical strategic point.
  • If the plaintiff pleads they are in joint possession (even constructive possession), the court fee is fixed (e.g., Rs. 200 in some states) under Article 17(vi) of the Court Fees Act.¹⁸
  • If the plaintiff admits they have been excluded or ousted from possession, they must pay ad valorem court fees on the market value of their share, which can be substantial.
• Preliminary Decree: The court first determines the shares (e.g., Plaintiff has 1/8th).
• Final Decree: A Commissioner is appointed to physically divide the property (metes and bounds). If the property (e.g., a single house) cannot be divided, it may be sold and the proceeds distributed (Partition Act, 1893).

5.3 Limitation and The Plea of Adverse Possession

A common defense raised by brothers against sisters in partition suits is, “We have been in possession for 30 years; her claim is barred by time.”

• Article 65 of Limitation Act, 1963: The limitation period for a suit for possession based on title is 12 years. However, the clock starts ticking only when the possession of the defendant becomes adverse to the plaintiff.¹⁹
• Article 110: Applies specifically to a person excluded from joint family property. Limitation is 12 years from when the exclusion becomes known to the plaintiff.²⁰
• The Law of Ouster: Since heirs are tenants-in-common, the possession of one heir is deemed to be possession on behalf of all. Mere non-participation in profits or long absence does not amount to Adverse Possession. The defendant must prove Ouster: a positive, hostile assertion of exclusive title coupled with a denial of the plaintiff’s title, brought to the plaintiff’s knowledge.
  • In Vidya Devi vs. Prem Prakash (1995) ²¹, the Supreme Court held that the legislature has not prescribed a limitation period for filing a partition suit per se, as it is a recurring right. The bar of limitation arises only upon clear ouster.
  • In Zainulabudeen vs. Sayed Ahmed Mohideen ²², the court reaffirmed that co-heirs cannot claim adverse possession without clear evidence of hostile intent communicated to the other heirs.

5.4 The “Oral Gift” Defense: Analysis of Mansoor Saheb (2024)

A frequent litigation tactic is for a defendant to claim, “There is no property to partition because the father orally partitioned/gifted it to his sons during his lifetime.”

In the recent landmark judgment Mansoor Saheb (D) & Ors. vs. Salima (D) (Dec 19, 2024), the Supreme Court dealt a blow to this practice. The Court held:

1. A “partition” during the lifetime of the owner is legally a Gift (Hiba).
2. For a Hiba to be valid, three conditions must be met:
   • Ijab (Declaration by donor).
   • Qubool (Acceptance by donee).
   • Qabza (Delivery of possession).
3. Vague revenue entries (Mutation) or oral testimonies are insufficient to prove these elements. The Court rejected the “oral partition” theory used to disinherit daughters, reinstating their shares.⁵ This judgment is a powerful precedent for Patra’s Law Chambers when representing female heirs.

6. Shia Law of Inheritance: A Comparative Overview

While most Indian Muslims are Sunnis, a significant minority (especially in Lucknow, Hyderabad, and parts of Kashmir) are Shias (Ithna Ashari school). Their law of inheritance is structurally different.

Feature	Sunni (Hanafi) Law	Shia (Ithna Ashari) Law
Structure	Hierarchy of Sharers & Residuaries. Agnates preferred.	Classification based on blood relationship (Nasab). No distinction between agnates and cognates.
The Daughter	Can get at most 1/2 or 2/3. Requires a male Residuary to inherit the rest.	Can inherit the entire estate. If she is the sole child, she takes 1/2 as Share and the other 1/2 by Return (Radd).
Representation	No Representation. A predeceased son’s son is excluded by a living son.	Representation applies (Per Stirpes). A grandchild steps into the shoes of the predeceased parent and takes their full share.
Wife’s Rights	Inherits from all property (land + buildings).	Traditionally, a childless widow could not inherit land, only the value of buildings. (Note: This is evolving in modern courts).
Doctrine of Aul	Recognized. Shares are reduced proportionately.	Not Recognized. The deficiency falls entirely on the daughter/sister.

Strategic Insight: In a Shia family, the daughter is a much stronger heir. If a Shia client approaches Patra’s Law Chambers, the strategy must pivot to leverage the Per Stirpes rule and the exclusion of agnatic preference.

7. Drafting Guidelines and Law Firm Protocol

For clients engaging Patra’s Law Chambers, the following procedural steps are mandated to ensure a robust legal standing.

7.1 The Legal Notice

Before litigation, a formal notice establishes the “cause of action.”

Drafting Checkpoints:

• Clearly assert the death of the ancestor and the resulting vesting of shares.
• Explicitly deny any prior oral partition or gift.
• Demand partition by metes and bounds within a specific timeframe (e.g., 15 days).

7.2 The Plaint for Partition

Key Averments:

• Genealogy: A complete family tree is non-negotiable. Omitting a single heir can lead to the dismissal of the suit for non-joinder of necessary parties.
• Unity of Possession: Plead that the plaintiff is in constructive possession to minimize court fees.
• The Estate: Detail the properties. If the defendant has sold a portion, include the purchaser as a party and challenge the sale to the extent of the plaintiff’s share.

8. Detailed Case Studies and Calculation Examples

To illustrate the mathematical application of these laws, we present 25 categorized scenarios commonly encountered by Patra’s Law Chambers.

Category A: The “Primary Sharers” (Standard Cases)

Scenario 1: The Classic Nuclear Family

• Deceased: Male (P).
• Heirs: Wife (W), Son (S), Daughter (D).
• Calculation:
  1. Wife: As there are children, W gets 1/8.
  2. Residue: 1 – 1/8 = 7/8. This goes to S and D.
  3. Ratio: S and D share in 2:1. Total parts = 3.
  4. Son: (7/8) × (2/3) = 14/24 = 7/12.
  5. Daughter: (7/8) × (1/3) = 7/24.

• Check: 3/24 (W) + 14/24 (S) + 7/24 (D) = 24/24 = 1.

Scenario 2: Spousal Variation (Female Deceased)

• Deceased: Female (P).
• Heirs: Husband (H), Daughter (D).
• Calculation:
  1. Husband: Children exist, so H gets 1/4.
  2. Daughter: As a sole daughter, she gets 1/2 (Share).
  3. Total: 1/4 + 1/2 = 3/4.
  4. Residue: 1/4 remains.
  5. Return (Radd): If no other heirs (like father/brother), the residue returns to the Daughter (under modern Indian application) or theoretically to the Husband and Daughter proportionately.
  6. Final (with Radd to both): Ratio of shares is 1/4 : 1/2 = 1:2. H gets 1/3 of estate, D gets 2/3.

Scenario 3: Multiple Wives

• Deceased:
• Heirs: 2 Wives (W1, W2), Son (S).
• Calculation:
  1. Wives: The collective share is 1/8. W1 and W2 share this equally.
     • W1 = 1/16.
     • W2 = 1/16.
  2. Son: Takes the residue (7/8).

Scenario 4: Parents and Children

• Deceased:
• Heirs: Father (F), Mother (M), Son (S).
• Calculation:
  1. Father: 1/6 (Fixed share due to son).
  2. Mother: 1/6 (Fixed share due to son).
  3. Son: 1 – (1/6 + 1/6) = 1 – 2/6 = 4/6 = 2/3.

Scenario 5: Mother Only

• Heirs: Mother (M), Son (S).
• Calculation:
  1. Mother: 1/6.
  2. Son: 5/6.

Category B: The Doctrine of Aul (Increase)

These scenarios represent cases where the estate is “over-subscribed.”

Scenario 6: The “Lucky Husband” (Husband + 2 Sisters)

• Heirs: Husband (H), 2 Full Sisters (S1, S2).
• Standard Shares: H = 1/2, Sisters = 2/3.
• Math: 1/2 + 2/3 = 3/6 + 4/6 = 7/6. (Exceeds 1).
• Aul: Increase denominator to 7.
• Result:
  • Husband: 3/7.
  • Sisters: 4/7 (each gets 2/7).

Scenario 7: The “Crowded House”

• Heirs: Wife (W), 2 Daughters (D1, D2), Father (F), Mother (M).
• Standard Shares:
  • Wife: 1/8 (3/24).
  • Daughters: 2/3 (16/24).
  • Father: 1/6 (4/24).
  • Mother: 1/6 (4/24).
• Sum: 3 + 16 + 4 + 4 = 27/24.
• Aul: Denominator becomes 27.
• Result:
  • Wife: 3/27.
  • Daughters: 16/27.
  • Father: 4/27.
  • Mother: 4/27.

Scenario 8: Husband and Sisters (Variant)

• Heirs: Husband, Full Sister, Uterine Sister.
• Shares: H (1/2 = 3/6), Full Sis (1/2 = 3/6), Ut. Sis (1/6 = 1/6).
• Sum: 7/6.
• Aul: Shares become 3/7, 3/7, 1/7.

Scenario 9: Pregnant Wife (Anticipatory Aul)

• Situation: If the wife is pregnant, shares are calculated provisionally reserving the largest possible share (for a son) and adjusted later.

Category C: The Doctrine of Radd (Return)

Scenario 10: Single Heir (Mother)

• Heirs: Mother (M). No other heirs.
• Share: 1/3 (as no child/sibling).
• Residue: 2/3.
• Result: Mother takes 1/3 as Share + 2/3 by Radd = Entire Estate.

Scenario 11: Mother and Daughter

• Heirs: Mother (M), Daughter (D).
• Shares: M (1/6), D (1/2 = 3/6).
• Sum: 4/6. Residue is 2/6.
• Radd: Return the residue in proportion to original shares (1:3).
• Result:
  • Mother: 1/4 of estate.
  • Daughter: 3/4 of estate.

Scenario 12: Wife and Daughter (Modern View)

• Heirs: Wife (W), Daughter (D).
• Shares: W (1/8), D (1/2 = 4/8).
• Sum: 5/8. Residue 3/8.
• Result: In absence of other heirs, courts often give the residue to the Daughter (as blood relation), so D gets 7/8. Or, if applying Radd to spouses, distribute 3/8 in 1:4 ratio.

Category D: Exclusion and Special Rules

Scenario 13: The “Predeceased Son” Tragedy

• Deceased: Grandfather (GF).
• Family: Son A (Living), Son B (Died earlier), Grandson C (Son of B).
• Result:
  • Son A takes the entire estate as Residuary.
  • Grandson C is Excluded by the nearer heir (Son A).
  • Remedy: This is the harsh face of Hanafi law. However, if the Grandfather made a Will (Wasiyat) for C, C could get up to 1/3.

Scenario 14: Father Excludes Grandfather

• Heirs: Father (F), Paternal Grandfather (FF), Son (S).
• Result:
  • Father: 1/6.
  • Son: 5/6.
  • Grandfather: 0 (Excluded by Father).

Scenario 15: Mother Excludes Grandmother

• Heirs: Mother (M), Paternal Grandmother (FM).
• Result: Mother takes her share. Grandmother is Excluded.

Scenario 16: Half-Blood Exclusion

• Heirs: Full Brother, Consanguine Brother (Half-brother by father).
• Result: Full Brother excludes Consanguine Brother.

Scenario 17: Uterine Exception

• Heirs: Full Brother, Uterine Brother (Half-brother by mother).
• Result: Full Brother does not exclude Uterine Brother.
  • Uterine Brother gets 1/6 (Share).
  • Full Brother gets 5/6 (Residuary).

Scenario 18: The Homicide Bar

• Situation: Son murders Father to inherit early.
• Result: Son is totally disqualified. Inheritance passes as if Son did not exist.

Scenario 19: Illegitimate Child

• Situation: Child born out of wedlock.
• Result: Under Sunni law, child inherits from Mother only. Under Shia law, child inherits from neither.

Scenario 20: Missing Heir (Mafqud)

• Situation: Son went missing 5 years ago.
• Result: His share is reserved. Under Section 108 of Indian Evidence Act, death is presumed after 7 years of being unheard of.

Category E: Complex Combinations

Scenario 21: Daughter making Sister a Residuary

• Heirs: Daughter (D), Full Sister (Sis).
• Rule: “Make sisters residuaries with daughters.”
• Result:
  • Daughter: 1/2.
  • Sister: 1/2 (Takes the residue).

Scenario 22: Step-Relations

• Heirs: Son, Step-mother (Father’s other wife).
• Result: Step-mother inherits as “Wife” of the deceased father (1/8). The relationship is valid through marriage to the deceased.

Scenario 23: Childless Widow vs. Widow with Child

• Heirs: Wife A (Childless), Wife B (Has son).
• Result: Both Wives share the 1/8 equally (1/16 each). The presence of any child of the deceased reduces the share of all

Scenario 24: Simultaneous Death (Comrnorents)

• Situation: Father and Son die in a plane crash; not known who died first.
• Result: Neither inherits from the other. The estate of each is distributed to their own living heirs.

Scenario 25: Distant Kindred (Rare)

• Heirs: Only Daughter’s Son (DS). No other relations.
• Result: DS takes 100% as Distant Kindred.

9. Conclusion: The Role of Expert Legal Counsel

The legal landscape of Muslim partition in India is a tapestry of divine injunctions woven with statutory mandates. While the shares are fixed, the procedural path to securing them is fraught with pitfalls—from the defense of “oral gift” to the plea of “adverse possession.”

The recent Supreme Court judgment in Mansoor Saheb (2024) serves as a clarion call for formal documentation and evidentiary rigor. Heirs can no longer rely on vague family understandings or revenue entries. The partition must be deliberate, documented, and legally executed.

Patra’s Law Chambers stands at the forefront of this specialized litigation, offering deep expertise in:

1. Drafting Partition Deeds that comply with both Shariat and the Registration Act.
2. Litigating Partition Suits, specifically countering “Oral Gift” defenses.
3. Estate Administration, ensuring debts and dowers are cleared before distribution.

For consultation on inheritance matters, property disputes, or succession planning:

Patra’s Law Chambers

• Kolkata Office: NICCO HOUSE, 6th Floor, 2, Hare Street, Kolkata-700001
• Delhi Office: House no: 4455/5, 1st Floor, Paharganj, New Delhi-110055
• Website: patraslawchambers.com
• Email: [email protected]
• Phone: +91 890 222 4444 / +91 9044 04 9044

Disclaimer: This report constitutes a legal opinion based on the current statutes and judicial precedents in India. It is intended for informational purposes and does not substitute for specific legal advice tailored to individual facts.

Works cited

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3. THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937 ARRANGEMENT OF SECTIONS – India Code, accessed on December 26, 2025, https://www.indiacode.nic.in/bitstream/123456789/2303/1/A1937-26.pdf
4. Muslim inheritance laws in India – Shankar IAS Parliament, accessed on December 26, 2025, https://www.shankariasparliament.com/current-affairs/gs-ii/gs-ii-polity/muslim-inheritance-laws-in-india
5. REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4211 OF 2009 MANSOOR SAHEB (DEAD) & O, accessed on December 26, 2025, https://api.sci.gov.in/supremecourt/2006/12193/12193_2006_9_1506_58088_Judgement_19-Dec-2024.pdf
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