Predeceased brothers of a deceased muslim have no right to property of deceased: High Court of Jammu and Kashmir

As per muslim inheritance laws in India, the predeceased brother of a deceased man does not have any rights over the property in the presence of living siblings. This was held by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Vinod Chatterji Kaul in the case of Mohammad Syed Allie v Mst Zeeba [MA no. 139/2015] on 22nd June 2021.

A muslim man, Ghulam Mohammad Allie died issueless on 2013 without any children. Principal District Judge, Anantnag passed an order granting the succession certificate of the deceased man to his sisters Hajira and Zeeba. However, Mohammad Syed Allie, the son of the deceased man’s predeceased brother was not allowed any share in the property. Aggrieved by the Principal District Judge’s order, Mohammad Syed Allie who is the petitioner in this case, prayed for it to be set aside on the grounds that the order was passed without taking into consideration the shariat act or the opinion of any scholar on record. The petitioner claimed that as per these personal laws, he should also be entitled to a share of the deceased man’s property.

The High Court noted that as per the Muslim Law of Succession practiced in India, when a muslim man has died without a spouse or children, preference is given to his siblings who are still alive. Any siblings who died before the deceased man have no rights to the property at all in the presence of the living siblings. This implies that the children of pre-deceased siblings cannot be considered as the legal heirs. The grant of succession certificate is regulated by the Sucession Certificate Act, Svt. 1977. Section 7(3) of this act states that when a court cannot decide the right to certificate without determining questions of law which seem to be too intricate, it may grant a certificate to application if he appears to have the prima facie best title as the deceased person’s heir. The High Court declared that as the present case could be considered as intricate, the District Court was completely justified in granting the succession certificate to Hajira and Zeeba.

The appeal was dismissed, the District Court’s order was upheld and Justice Vinod Chatterji Koul concluded that “court below has correctly placed reliance upon the law of the land that predeceased brothers of a deceased Muslim have no right to property of deceased, which exclusively devolves on surviving brother. In that view of matter impugned order need not be interfered with and consequently appeal on hand is liable to be dismissed”.

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