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FAMILY LAW

ASSIGNMENT

TOPIC-
ADMINISTRATION OF
ESTATE

SUBMITTED BY-
MOHAMMAD AAZAM
B.A.LL.B. SELF FINANCE
4th SEMESTER
ROLL NO. 32
ACKNOWLEDGEMENT

It gives me immense pleasure and gratitude to thank my Family Law teacher,


Kahkashan Y. Danyal Ma’am, who gave me the golden opportunity to do this wonderful
project which helped me in doing a lot of research and I came to know about so many new
things. I am really thankful to her for enlightenment of a perfect way to do a legal research
and how to compile a huge rigmarole of work into a nutshell.
Secondly, I would also like to thank my classmates and friends who helped me a lot in
finalising this project within the limited time frame.

Yours Sincerely,
Mohammad Aazam.
TABLE OF CONTENTS

Introduction……………………………………………………………………..……….. 1
Administration of Estate………………………………………………………………….2-3
Legal Representative…………………………………………………………………..…3-5
Vesting of Estate………………………………………………………………………….5-6
Legal Actions against & on behalf of the estate of the Deceased…………………………7
Suit by Creditors………………………………………………………………………….7-9
Recovery of Debts due to the Deceased………………………………………………….. 9
Payments of Debts……………………………………………………………………….. 10
Extent of Liability of Heirs for Debts……………………………………………..10-12
Alienations………………………………………………………………………...12-14
Conclusion………………………………………………………………………………...14
Bibliography……………………………………………………………………………....15
INTRODUCTION

Muslim law provides a machinery for the distribution of the estate of the
deceased among the legatees and the heirs. In the words of Fyzee:
It is as though the estate were a round cake, which from a distance seems
entire; but as each heir approached the table, the cake is found to be carefully
cut up and divided proportionately; and all that remains to be done is to handover
to him his particular piece.1
The concept of administration of estate was introduced in India for the first
time by the Probate and Administration Act, 1881. This was merely an enabling
statute. The Probate and Administration Act, 1881 was replaced by the Indian
Succession Act, 1925. In modern India, the administration of the estate of a
deceased Muslim as well as of the members of other communities is governed
by one uniform law, viz., the Indian Succession Act, 1925. It should be noted that
the substantive law that is applicable to the estate of a deceased. Muslim is still
Muslim law, i.e., the law of the school to which the deceased belonged at the
time of his/her death2. But if the deceased Muslim had married under the Special
Marriage Act or his marriage was registered under the Act, the succession to his
estate, including the substantive law, will be entirely governed by the provision of
the Indian Succession Act.

ADMINITRATION OF ESTATE
1
Fyzee 368
2
Hayat-un-nissa v. Muhammad Ali Khan (1892) 17 IA 73

1
“Administration of Estate” means management of the property of the deceased
for a temporary period. Suppose a Muhammadan dies leaving behind some property.
He had taken some loan, some others had taken loan from him, some had mortgaged
their property with him, he had mortgaged his property with others; he had
bequeathed some property by will, incurred some expenses; is survived by a
specific number of heirs of different categories. Now all the debts will
have to be paid, the legatees and heirs will have to be given their shares
after deducting their portion of the charges on the property. If some
heirs are minor, their property will have to be managed. The dues from others
will have to be realised. Performing all these functions means administering the
property. The person who will do it is the administrator of the property, the
representative of the estate, or the agent of the deceased. In the early days
the Kazi did all this work; now it is done by the administrator, appointed under the
Indian Succession Act, 1925, which has replaced the Probate and Administration
Act, 1881. If the deceased had appointed an executor, the above functions would be
Conducted by him.
The duty of administering an estate, according to the law of Islam, rests
on the State, acting through the Kazi. Hence it is correct to say that administration
as understood in modern law, involving necessarily the recognition of an
executor or the appointment of an administrator, was unknown to
Islamic jurisprudence.3
“Administration was introduced into the fabric of Muhammadan law
by the reception of the English concept of administration and later by the
enabling provisions of the Probate and Administration Act, 1881.”4
According to the Muslim legal theory, the property of a deceased Muslim
vests in his heirs immediately after his death. But it is subject to the injunction
that the heirs are entitled to take only that residue which is left after the
payment of the legacy or debt. Since the payment of debts and legacies

3
Fyzee, 375.
4
Ibid, at 375-376

2
necessarily involves the administration of the estate, such administration
may be said to be implied in the very spirit of Muslim law itself.
Muslim law recognises four distinct purposes to which the estate of the
deceased is successively applicable:
 his funeral expenses;
 his debts;
 his legacies; and
 the claim of his heirs.
But Muslim law is replaced by the Indian Succession Act, (39 of 1925), which
lays down the following scheme of the order of priority in which the payments are to
made:
 funeral expenses and death-bed charges;
 expenses of obtaining the probate or letters of administration;
 wages for services rendered to the deceased by a labourer or servant within
three months of his death;
 debts, according to their own priorities;
 legacies, not exceeding one-third of what has been left after payment of items
mentioned above.5

LEGAL REPRESENTATIVE

As a general rule, the executor or administrator


(or, in their absence, the heirs) of a deceased Muslim is his legal representative,
and all the assets of the deceased vest in him. It is the duty of the executor or the
administrator to collect the assets, discharge the debts, pay the legacies, and
distribute the balance of assets among the heirs. When a Muslim dies leaving
behind a will, it is not necessary for the executor to obtain the probate of the will,
but, if the debts due to the deceased are to be recovered, the representation is
necessary, as the court of law will pass a decree in favour of the estate of the
deceased unless the representation, in any from, as laid down in the Indian
Succession Act, is obtained. Thus, when a deceased dies leaving behind a will,

5
Fyzee, 379-80.

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the probate should be obtained. In case he dies intestate, the letters of
administration may be obtained.
In case, the executor is not able to complete the administration in his
lifetime, he can, under the Hanafi law, appoint a successor to himself to carry out
the purpose of the will. In case he dies without appointing a successor, it seems
the appointment of another executor by the court will be necessary. The Shia
authorities hold the view that unless an executor has been authorized to
nominate his successor by the testator, he has no power of appointing a
successor to himself. Where there are more than one executor, the survivors are
competent to continue to act as executors. It seems that under Shia law, the
court has no power of appointing an executor so long as there is any surviving
executor.
After the payment of funeral expenses and debts of the deceased, the
executor, under Muslim law, acts as an active trustee in respect of bequeathable
one-third, and as a bare trustee for the heirs in respect of the remaining two-thirds.
The powers and duties of executors and administrators are laid down in
the Indian Succession Act. These provisions also apply to executors and
administrators of a Muslim.
According to the strict Muslim law, a non-Muslim cannot be an executor
but in modern India a non-Muslim can be validly appointed as an executor.
Probate or letters of administration with the will annexed may be obtained,
whether the will is oral or in writing. Once the probate or letters of administration
is granted, it conclusively establishes the claim of the executor/administrator to
represent the estate for all purposes. In case an executor appointed under a will
does not obtain probate, the court has power to appoint any person as an
administrator with the will annexed. The letters of administration may be granted
to a person who is an heir, legatee or creditor of the deceased. Any person
claiming an interest in the estate of the deceased may bring a suit for administration for
the purposes of ascertainment of the estate and of debts and liabilities relating to it, for
a proper allocation of debts to the properties to which different rules of descent apply, for

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accounts, and for the declarations and delivery of the interest therein to those entitled to him.

VESTING OF ESTATE

The estate of the deceased vests in the executor,


where there is one, and it vests in him, even if no probate has been obtained by
him.6 In case, the letters of administration have been obtained, the estate vests
in the administrator. If there is neither an executor nor an administrator, then the
property vests in the heirs. The law may be stated thus:
 When a Muslim dies leaving behind a will where under he had appointed
an executor, his estate vests in him, as he is the legal representative of
the deceased. In particular (i) the bequeathable one-third vests in him for
the purpose of the will, and (ii) the rest vests in him as a bare trustee for
the heirs. An executor is required to do the following:
a) To collect all the assets of the deceased, including the debts,
b) To pay all charges against the estate, such as funeral expenses,7
c) To pay the debts of the deceased,
d) To pay the legacies, and
e) To distribute the remaining property among the heirs.
Although it is not necessary for an executor to obtain the probate, but no
court will pass a decree against a debtor of the deceased, or allow execution
proceedings, unless probate is obtained. For the purpose of realization the debts
of the deceased, an executor who had not obtained the probate might obtain a
certificate under the Administrator -General’s Act, 1963, or a succession
certificate under the Indian Succession Act.

 In case a Muslim dies intestate and letters of administration have been


obtained, then the assets of the deceased vest in the administrator. The
administrator is the legal representative of the deceased. An administrator is

6
Mohammad Yusuf v. Hargovandas Jivan, AIR 1922 Bombay, 392
7
Sec. 320-323 of the I.S.A. 1925

5
required to do the following:
(a) to collect the assets and debts of the deceased,
(b) to pay all the charges against the estate, such as funeral expenses,
(c) to pay the debts, and
(d) to distribute the balance among the heirs.

 When a Muslim dies without appointing an executor, or dies intestate, and


no letters of administration have been obtained, then the property of the
deceased vests in the heirs. In such a case the heirs are also the legal
representatives of the deceased. But neither a decree can be passed against the
debtors of the deceased, nor can execution proceedings be launched against the
judgment-debtors of the deceased unless (i) a certificate is obtained under the
Administrator-General’s Act, or (ii) a succession certificate is obtained under the
Indian Succession Act.8
When the estate vests in the heirs it vests in them not jointly but in
severally as from the time of the death of the deceased in proportion to their
respective shares in the estate. They hold it subject to the payment of the
charges and debts in proportion to their shares in the estate, and also subject to
the payment of legacies, if any, up to the bequeathable one-third.

LEGAL ACTIONS AGAINST AND ON BEHALF OF THE


ESTATE OF THE DECEASED

Under Muslim law the estate of the deceased devolves on the heirs the moment

8
Part X of the Act.

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he dies, and heirs are free to distribute it among themselves at any time
thereafter9. The estate of a Muslim dying intestate devolves under the Islamic
law upon his heirs at the moment of his death, i.e. the estate vests immediately in
each heir in proportion to the shares ordained by the personal law and the
interest of each heir is separate and distinct. Each heir is under the personal law
liable to satisfy the debts of the deceased only to the extent of the share of the
debt proportionate to his share in the estate10. It is non incumbent upon them to
postpone the distribution of assets till the debts are paid. However, each heir is
liable for the debts of the deceased to the extent of his share, even after the
distribution of assets of the deceased but no more.

SUIT BY CREDITORS

When a Muslim dies indebted, then the creditors may


sue the executor or administrator, and, in the absence of an executor or
administrator, the heirs, for the realization of their debts. In case the estate of the
deceased has not been distributed among the heirs, a creditor can execute a
decree against the entire estate, irrespective of the extent of the liability of the
each heir. The High Courts differ as to whether a decree obtained by a creditor
against some of the heirs is also binding on others. The Supreme Court has
now resolved the controversy. In Daya Ram v. Shyam Sundari, Ayyanagar,11 J.
said that though ordinarily the court does not regard a decree binding on a
person who is not impleaded eo-nomine in an action, there are certain recognized
exceptions to this rule; one of these is that where certain persons are impleaded
after diligent and bona fide enquiry in the genuine belief that they are the only
persons interested in the estate, the whole estate of the deceased will be duly
represented by the persons who are brought on the record or are impleaded, and

9
Jafri Begum v. Mohammad Amir Khan, (1885) 7 A11 822
10
N.K. Md. Sulaiman Sahib v. N. C. Ismail Sahib, AIR 1966 SCC 792
11
AIR 1965 SC 1049

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the decree will be binding on the entire estate. But, the learned judge said, this
rule will not apply to cases where there has been fraud or collusion between the
creditors and the heirs impleaded, or where there are other circumstances which
indicate that there has not been a fair or real trial, or where the absentee heir had
a special defence which was not and could not be taken in the earlier
proceedings. This was a case where all the parties were Hindus. The question
again came before the Supreme Court in N.K. Md. Sulaiman Sahiv v. N.C. Md.
Ismail Saheb12, where the deceased was a Muslim. Three persons, A, B and C
mortgaged certain immovable properties in favour of one, R. After the death of A,
R file a suit for enforcement of the mortgage against B and C and the three
widows and a daughter of A. the suit was decreed, and, in execution proceedings
of the decree, the properties were sold at court sale and were purchased by R. R
alienated these properties to some other persons. Subsequently, the plaintiff P,
claiming himself to be the son of A, filed a suit for the partition of mortgaged
properties by metes and bounds, and in the alternative that he was entitled to
redeem the properties or a portion thereof equal to his share in the mortgaged
properties. The Plaintiff’s suit was resisted by R and the aliens on the averments
that the decree obtained by R was binding on P as the estate of M was fully
represented in the suit by those who were in possession at that time, and R on
the basis of full and bona fide enquires made by him learnt that the three widows
and the daughter were the only representative of A. The court held that P was
bound by the decree as estate of A was fully represented in the suit. Shah, J.
observed that a creditor of a Muslim dying intestate might sue all the heirs of the
deceased, and where the estate of the deceased had not been distributed among
the heirs, he might execute the decree against the property as a whole without
regard to the extent of liability of the heirs inter se. the creditor is not required to
sue all the heirs: he may sue some of the heirs and obtain a decree against
them. The decree may be enforced against individual heirs in proportion to their
shares in the estate. The learned judge further said that it is settled that where

12
AIR 1966 SC 792

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the defendant dies after the institution of the suit, the creditor after diligent and
bona fide enquiry impleads some, but not all, as legal representatives, the heir so
impleaded represent the estate of the deceased, and a decree obtained against
them, binds not only those heirs who are impleaded in the action but the entire
estate, including the interest of those not brought on the record.

RECOVERY OF DEBTS DUE TO THE DECEASED

It has been seen earlier that a suit for the recovery of debts due to a
deceased Muslim may be filed by an executor,
administrator or an heir. Such a suit can be filed by an executor who
has obtained probate of the will, or by an administrator to whom letters of
administration have been issued. An heir or an executor who has not obtained
the probate of the will can file a suit for the recovery of deceased’s debt only if a
certificate under section 31 or section 32 of the Administrator - General’s Act, or
a succession certificate under Part X of the Indian Succession Act, has been
obtained. However, a debtor can validly pay the amount of debt to an executor
who has not obtained a probate or a certificate under either Act. Similarly, a
debtor is free to pay the debt to the heirs who have not obtained either certificate
under the aforesaid enactments. But the payment of debts by a debtor to one or
more heirs does not discharge the debt due in respect of the shares of other
heirs13.

PAYMENTS OF DEBTS

This part deals with the debts and liabilities on the property of the deceased.
It is not dependent on the existence or non-existence of the executor or
administrator. The ultimate liability is on the successors to the property.

13
Ashima Bibi v. Abdul Kadir, ILR (1901) Mad 26

9
A creditor of the deceased may sue the executor or administrator of the estate,
and if there is none, the heirs for the recovery of his debts. The payment of the debts
of the deceased takes precedence over the legacies and inheritance. A decree-holder
may proceed against the legatees even if there is other property sufficient for the debts.
The debts do not suspend the rights of the heirs to distribute the estate at any time.
But this does not mean that the debts are forgotten. The property is received by each
heir subject to the proportionate share of the debt. The debt of the deceased will
get priority over his personal debt.

EXTENT OF LIABILITY OF HEIRS FOR DEBTS


This liability is bound by two limits :-
1. The total liability of all the heirs together shall not exceed the total quantum
of the property; and
2. The net liability of each heir shall not exceed his net share in the property.
The heirs are not personally liable for the debts. So if the deceased left no assets, the
debts would remain unredeemed; and if he left in sufficient assets, the payment would
be limited to the amount of the assets. Each heir succeeds to a specified share in the property
according to the Muhammadan law of succession. The heirs may be living together, but
there is no ‘joint family property’, or ‘undivided family’. There is no Karta or no notion
of representativeship. There may be no partition, yet there is no coparcenership or no
doctrine of partial partition. The share of each heir is specific and known before the death
of the ancestor. As a result his liability is also linked with his share in the property. Since
they are tenants in common and the share of each is predetermined, anyone can at any
time demand partition of the estate. For this purpose getting an administrator appointed
is one of the convenient methods, because then the question of the exact debts of the
deceased, expenses incurred on treatment during illness, dower debts, debts acknowledged
on death-bed, priority of claims, etc. can be better adjusted.
In Jafri Begum v. Amir Muhammad khan14 Mahmood, J., laid down three propositions
regarding the payment of debts.
Proposition I – When a Muslim dies leaving debts unpaid, his estate devolves

14
(1885) 7 A11 822

10
Immediately on his heirs, and such devolution is not suspended till or contingent
upon the payment of debts.
Proposition II – A decree for a debt passed against such of the heirs as are in possession
Of the estate does not bind the other heirs.
Proposition III – If one of the heirs, who was out of possession and who was not a party
to the proceeding brings a suit against the decree-holder for the recovery of his share of
the estate, he must pay his proportionate share of the debt before recovering possession
of his share of the inheritance.
Proposition I came under judicial scrutiny in Abdul Majeeth v. Krishnamachariar15.
Mr. Justice Abdur Rahim approved it and observed:
“It is not correct to say that the devolution of estate on the heirs does not take place
or is postponed until his funeral expenses and the debts and legacies have been paid.
This is evident from the following facts: if an heir designated by the law dies after
the death of the propositus, his share descends on his own heirs and does not lapse to
the general estate. Each heir is entitled to the income that has accrued since the
testator’s death, in proportion to his share, and he can transfer by sale or gift,
subject, it may be, as to the latter form of disposition to such restrictions as are
imposed by the doctrine of Mushaa.
As far back as 1878, the Judicial Committee (of the privy Council) in
Bazayet Hossein v. Dooli Chand16, held that an heir-at-law was entitled to alienate
his share in spite of the fact that there were debts of the deceased still outstanding,
and it would not have been possible to hold this if the inheritance did not devolve
on the heir on the death of the propositus. Mr. Justice Mahmood in Jafri Begum v.
Amir Muhammad Khan, has fully discussed the question and I do not think it
would be of any use to add anything more to his reasoning.”

ALIENATIONS

15
(1916) 40 Mad 243 (FB)
16
(1879) ILR 4 Cal 402 (PC)

11
Alienation by an heir of his share before the payment of
debt- Since the estate of a Muslim vests in the heirs immediately on his demise,
an heir has the power of alienating his share and pass a good title to a bona fide
alienee for value, even if no distribution of assets of the deceased has taken
place, and notwithstanding the outstanding debts of the deceased. Thus, in Land
Mortgage Bank vs. Bidyadhari17, the heirs sold the entire estate of the deceased
to one P without discharging the debts of the deceased. Subsequent to the sale,
Q, a creditor of the deceased, obtained a decree against the heirs for his debts
and applied for the execution of the decree. Q applied that the properties in the
possession of P be attached. The attachment application of Q was dismissed.
The court said that a creditor of a deceased Muslim cannot follow the estate in
the hands of a bona fide purchaser for value.
Under Muslim law a sale of his share by an heir in execution of a decree
of his creditor amounts to a transfer and passes a good title to the transferee. In
Wahidu-nissa v. Shubratun18, A, a Muslim, died leaving behind a decree against
the sisters. Later on, Q, a creditor of the sister, also obtained a money decree
against them. In execution of Q’s decree the property was sold at court sale, and
was purchased by one, R. Then P filed proceedings to attach properties of A in
the hands of R in execution of his decree. It was held that he could not do so,
since R was a bona fide purchaser for value. In Bazayet Hossein v. Dooli
Chand19, A, a Muslim, died leaving behind a widow, W, and a son S. W’s dower-debt
was outstanding against A. S mortgaged his share in the estate to P without
paying W’s power-debts. Subsequently, W obtained a decree and S’s share was
attached. Then P obtained a decree on the mortgage against S for the sale of S’s
share and it was purchased by Q. Since the mortgage was made by S before W
got S’s share attached in execution of the decree, it was held that Q was entitled
to the property. However, if an alienation is made by an heir during the pendency
of a suit of a creditor of the deceased in which a charge is created on the estate,

17
(1980) 7 Cal LR 460
18
(1870) 6 Beng LR 5
19
(1878) 5 IA 211

12
then the transferee will take the property subject to the charge22. In Mohammed
Wazid v. Bazayet Hossein,20 A, A Muslim died leaving behind three widows, X, Y
and Z, and a son, S. X, Y and Z brought a suit against S, who was in possession
of the estate of A, for administration and for the payment of their dower-debt. The
suit was decreed and a charge was created for the dower-debt on the estate, and
S was directed to render accounts of the income of the estate. The widows
applied for the execution of the decree. While the execution proceedings were
pending, S mortgaged his share to P. P sued S on mortgage and obtained a
decree for the sale of S’s share in the estate. Consequent to which S’s share was
sold at a court sale and was purchased by Q. It was held on the suit of X, Y and
Z that Q took the properties subject to the charge of X, Y and Z. The distinction
between this case and Bazayet Hossein V. Dooli Chand, is that in the later case
the mortgage was effected before, while in the former it was effected after the
widows had filed the suit for the recovery of their dower-debt.
Alienation by an heir for payment of debt- When one of the heirs of a
deceased is in possession of the entire estate, he has no power of alienating out
of the estate of the deceased more than his share, even for the discharge of the
debts of the deceased. If he does so, then such alienation operates as a
transfer of his interest in the estate alone, and is not binding on the other heirs
and creditors of the deceased. However, it is possible that an heir may
mortgage his undivided share in some of the properties of the deceased. In such
a case the mortgagee takes the property subject to the right of other heirs to
enforce partition. When a partition is made on the suit of other heirs, other than
the mortgagor then the heirs take the property free from the mortgage and the
mortgagee can proceed only against the properties allotted to the mortgagor,
unless fraud is pleaded.

CONCLUSION

20
ILR (1878) 4 Cal 402

13
The peculiarity with a Muslim Will is that while a Muslim has absolute
powers to alienate “inter-vivos”, his power to bequeath away is not coextensive
with his power of alienation “inter-vivos”. It is subject to limitation as
regards to person (heir and non-heir) and limitation as regards the property
(rule of one-third, according to the tradition and regulated by Holy Quran) and
further regulated by the consent of heirs and to when it is to be given and how
it is to be given (when the Will exceeds one-third).

BIBLIOGRAPHY

BOOKS:
 Outlines of Muhammadan Law, A.A.A. Fyzee, Oxford University Press.
 Syed Khalid Rashid’s Muslim Law, Prof. V.P. Bhartaiya, Eastern book Company

14
 Principles of Mohammadan Law, Sir Dinshaw Fardunji Mulla, LexisNexis

WEBSITES:
 http://www.shodhganga.com
 http://www.legalserviceindia.com

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