JAMIA MILLIA ISLAMIA

ADMINISTRATION OF ESTATE
FAMILY LAW

ANAMTA HAMID
B.A. LL.B. (Hons.)[S/F]
10
CONTENTS

Acknowledgment 3

Introduction 4-5

Administration of Estate 6-8

Vesting of estate 9-10

Legal Representative 11-13

Functions of Legal Representative 14-15

The requirement of probate and letters of administration 16-17

Recovery of credits to the property of the deceased 18

Payment of debt 19-20

Alienation of estate before payment of debts 21

Conclusion 22

Bibliography 23

2
ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher Prof.
Kahkashan Y Danyal who gave me the golden opportunity to do this wonderful
project on the topic Administration of Estate which also helped me in doing a lot of
Research and I came to know about so many new things I am really thankful to
him.
Secondly I would also like to thank my seniors and friends who helped me a lot in
finalizing this project within the limited time frame.

Anamta Hamid

B.A.LL.B.(Hons.)[S/F]

Roll no. 10

3
INTRODUCTION
Administration of estates refers to management and settlement of estates of an intestate. Intestate
is a person who dies without a legal will. Administration of estates is usually done under court
supervision by appointing a person duly qualified and legally appointed. The person so appointed
is called an administrator. The administrator is responsible for administering and settling the
estate pursuant to the state statutory rules of descent and distribution. The responsibilities of an
administrator include:

1. the collection of decedents’ assets;

2. payment of debts and claims against the estate;

3. payment of estate taxes;

4. distribution of remainder of the estate among those entitled thereto.

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
death1. 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.

1 Hayat-un-nissa v. Muhammad AM Khan (1892) 17IA 73.

4
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 approaches the table, the cake is found to be carefully cut up and divided
proportionately; and all that remains to be done is to hand over to him his particular piece.”2

The concept of administration of estates was introduced in India for the first time during the
British rule 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
death.

At the same time, it should also be noted that if the deceased Muslim had married under the
Special Marriage Act, or his marriage was registered under that Act, the succession to his estate,
including the substantive law, will be entirely governed by the provisions of the Indian
Succession Act, 1925.

2 Fyzee 368.

5
ADMINISTRATION OF
ESTATE
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
expanses; is survived by a 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 realized. Performing all these functions means administrating
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.

Commenting upon the principles governing “administration of estate” of a Muslim in India ,

Wilson observes3 :

“This topic belongs partly to the substantive law of succession, and party to the
department of adjective or procedural law. Consequently we might expect to find, as we
do find in fact, that in British India it is partly regulated by Muhammadan Law, and partly
by statutory enactments. The question, what becomes of a man’s right and obligation at
the moment of his death, is a question of substantive and therefore of Muhammadan Law.
But such questions as, whose duty is it to give orders to the undertaker, to whom should
the creditors of the dead man sends in their bills, from whom will his debtors be safe in
taking receipt? Who is entitled to take immediate charge of the property? And above all,
what may, and what may not be done without the intervention of a public officers? Are
questions of adjective law, the answers to which may not be sought, in British India, from

3 Wilson, (5th Edn.) at p. 212.

6
 the Muhammadan Law sources, but from the Anglo-Indian code or the practice of the
Courts.”

The duty of administrating 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 understand in modern law,
involving necessarily the recognition of an executor or the appointment of an administrator, was
unknown to Islamic Jurisprudence.4

The administration of estate means that the estate of the deceased is to be applied successively to
the payment of funeral expenses5 (not the amount spent in ceremonies performed for securing the
peace of the soul of the deceased)6, expenses of proceedings for obtaining probate or letters of
administration7, wages and services rendered to the deceased within three months of his death 8,
debts of the deceased9, and legacies. The remaining estate is to be distributed among the heirs.

Muslim Law recognizes four distinct purposes to which the estate of the deceased is successively
applicable:

1. his funeral expenses;

2. his debts;

3. his legacies;

4. the claim of his heirs.

4 Fyzee, at p. 375.
5 Section 320 of the Indian Succession Act.
6 Sajjid v. Md. Sayid, AIR 1954 All 71.
7 Section 321 of the Indian Succession Act.
8 Section 322 of the Indian Succession Act.
9 Section 323-325 of the Indian Succession Act.

7
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 be made:

1. Funeral expenses and deathbed charges;

2. Expenses of obtaining probate or letters of administration;

3. Wages for service rendered o the deceased by a labourer or servant within

three months of his death;

4. Debts, according to their own priorities (discussed later on in this

chapter);

5. Legacies, not exceeding one third of what has been left after payments of
items (1) to (4) above.

This brings us to the consideration of an important question: whether vesting of the estate in the
heirs takes place immediately on the death of the propositus or is dependent on the payment of
debts.

8
VESTING OF ESTATE
Delivering his famous judgment in Jafri Begum v. Amir Mohd. Khan 10 , Mr. Justice Mahmood
observed:

“It is well known that the Muhammadan law of inheritance is based upon a passage in the
fourth chapter of the Koran, which in Sale's translation is thus rendered: "God hath thus
commanded you concerning your children: A male shall have as much as the share of two
females, but if they be females only, and above two in number they shall have two-thirds
part of what the deceased shall leave; and if there be but one, she shall have the half. And
the parents of the deceased shall have each of them a sixth part of what he shall leave, if
he have a child; but if he have no child, and his parents be his heirs, then his mother shall
have the third part. And if he have brethren, his mother shall have a sixth part, after the
legacies which he shall bequeath, and his debts be paid.”

It is clear that immediately after the death of a Muslim his property devolves on his legal
representatives- executor, administrator, and heirs. The absence of administrator does not
postpone the vesting of the property or its devolution on the heirs. The reason being that the
devolution is the result of the operation of the Muslim Law which is the substantive law.
According to the general principles of Islamic jurisprudence, there was no administration, but a
mere distribution of the estate, by the state if not by the heirs themselves, in accordance with the
principles laid down in the Sirajiyyah. The estate did not vest in Kazi, it vested, subject to certain
obligations, in the heirs, the physical distribution taking place much later than the appointment in
the eye of the law. A simile is drawn by Fyzee in these words:

“ it is as though the estate were a round round cake, which from a distance seems entire;
but as each heir approaches the table, the cake is found to be carefully cut up and divided
proportionately; and all that remains to be done is to hand over to him his particular
piece.”

10 ILR (1885) 7 All 822 (FB).

9
The portion of the property that devolves on the executor is to the extent covered by the valid
will; the rest will devolve on the administrator, and if no administrator has been nominated this
‘rest’ of the portion will devolve on the heirs. The existence of the debts will not postpone this
devolution, nor suspend the rights of the heirs to distribute the estate at any time. The devolution
will be proportionate to the respective shares under the Muhammadan Law of inheritance and the
heirs will take as co-heirs or tenants in common of their specific shares.

LEGAL REPRESENTATIVE
10
 (i) In case the deceased leaves a will—his executor (wasi), to the extent to which the
‘will’ is valid;

(ii) If he dies intestate (i.e. there is no will)—(a) the administrator, to whom the Court has
granted the letters of administration; failing whom-

(b) the heirs11.

In first case, according to the ancient texts a non- Muslim could not be appointed an executor of
the will of a Muslim; but the courts in India have held that religion is no bar and a Muslim may
appoint non- Muslim as an executor. According to Mulla ‘it is not necessary that the executor of
the will of a Muhammadan should be a Muhammadan. A Muhammadan may appoint a Christian,
a Hindu or any non- Muhammadan to be his executor. But he must be a major of sound mind.
The executor is an active trustee of the property bequeathed, which must not exceed 1/3 rd of the
deceased’s estate; for the rest of the 2/3rd, he is a bare trustee, being the representative of the
testator in whom the deceased had reposed confidence for the execution of the will.

The second representative—the administrator is an English concept statutorily introduced into

the fabric of Muhammadan Law by the Probate and Administration Act, now replaced by the
Indian Succession Act. Under section 2 (a) of the latter, an administrator is a person appointed by
the competent authority to administer the estate of a deceased person when there is no executor.
As already noted, an administrator is to be appointed in the absence of an executor.

The third named legal representative is the legal heir of the deceased to whom ultimately the
property belongs and for whose interest the court operates the law of administration. If no one
applies for letter of administration, the heirs themselves will be entitled to administer the estate.
An heir of a deceased Muhammadan may bring a suit for administration of estate. Section 211 of
the Indian Succession Act does not debar a single heir from filling it.

11 Verma, at pp. 368-69.

11
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 form, as laid down
in the Indian Succession Act, is obtained. Thus, when a deceased dies leaving behind a will, 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
necessary12. 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. 13 These provisions also apply to
executors and administrators of a Muslim. According to the strict Muslim law, a non-Muslim

12 Abu Yusuf holds the view that the rights devolves upon the survivors the two or more executors, while Abu
Hanifa and Iman Muhammed hold the view that in such a case direction from the court (Kazi) is necessary.
13 These provisions apply to all executors (deceased might belong to any community) throughout India, except the
State ofJammu Kashmir.

12
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 accounts, and for the declarations and delivery of the
interest therein to those entitled to him.

13
FUNCTIONS OF LEGAL
REPRESENTATIVE

A. 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 expenses14,

(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.

14 Section 320-323 of the Indian Succession Act 1925.

14
B. 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 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.

C. 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 Act15.

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.

15 Part X of the Act.

15
THE REQUIREMENT OF
PROBATE AND LETTERS
OF ADMINISTRATION

It is not necessary for the heirs or administrator of a deceased Muslim to obtain letters of
administration or for his execute to obtain a probate of will, if they are doing anything except the
realization of debts.

The legal representatives cannot obtain a decree or execute a decree for the recovery of debts due
to deceased, unless they obtain:

(i) a probate of will (if there is a will) or, letters of administration (if there is no will), or

(ii) a certificate under any of the following Acts, or Regulations, namely:

a. Administrator General’s Act, 1913;

b. Indian Succession Act, 1925;

c. Bombay Regulation, 7 of 1827.

A probate is a certified copy of the will issued by the Court under its seal to the executor of the
will. It is the authentic version of the will. A letter of administrator is a letter of appointment
appointing a person the administrator of the property of the deceased. It is issued by a district
court.

16
The Indian Succession Act prescribes the requirement of obtaining a probate in case of
testamentary death and the letter of administration in case of intestacy. Otherwise no right as
executor or legatee can be established in a court, or in case of intestacy, no right to any part of
the property may be established. But these provisions (Section 212-213) are not binding on
Muhammadans. As we have seen, even without these documents, the property of the deceased
will vest in the legatee or executor or heirs by the force of the Muslim Law on his death. The
rights of the heirs etc. will remain unaffected. Thus these certificates are optional for the
Muhammadans. And a court is not precluded to issue such certificates to a Muhammadan when
he applies. The effect of their absence is that a Muhammadan will not be able to recover debts
through the courts; a decree for debts will not be granted. It is not actually necessary to obtain
them before the institution of a suit, but they are must before obtaining the decree.

17
RECOVERY OF CREDITS
TO THE PROPERTY OF
THE DECEASED
It is the duty of the executor or administrator to take steps to recover debts due to the deceased.
For this purpose the executor or the administrator may file a suit against the debtors; for this he
must have obtained the probate of the will or the letters of administration, respectively. An heir
may also file such suit, but he, or in absence of a probate, the executor can file such uit 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 succession act has been obtained. However, a debtor can validly
pay the amount of debt to the executor or heir who has not obtained the abovementioned
certificates. That is, the certificates are required for filing a suit, not for receiving the amount
when offered by the debtor without the intervention of the court. But if the debtor makes
payment to one or some heirs only, he is not discharged of his debts due in respect of the shares
of other heirs. The reason being that when a Muslim dies, his credits devolve on his heirs in
proportion to the shares of each and therefore, each heir has individual right to receive it and
discharge the debtor separately.16

16 Ahinsa Bibi v. Abdul Kader Saheb, ILR (1901) 25 Mad 26.

18
PAYMENT OF DEBTS
The creditors of the deceased are entitled to recover the debts from the legal representative of the
estates. Where the estate of the deceased is represented by an executor or administrator, the
creditors are required to file the suit against that executor or administrator for recovery of their
debts.

Where the deceased has not appointed any executor or where no administrator has been
appointed by a court, the debts due to the deceased are realised from the heirs. In such cases, the
creditors are required to institute the suit against the legal heirs.

A. Extent of Liability of Heirs for Debts

This liability is bound by two limits:

(a) The total liability of all the heirs together shall not exceed the total quantum of the
property; and

(b) 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 insufficient assets, the payment would be limited to the
amount of assets.

If the heirs have not partitioned and have not taken possession of their specific shares in the
estate, the creditors may execute the decree for debts against the whole estate. It is not necessary
for the creditor that he must first of all determine the extent of liability of each heir and thereafter
make the claim against each heir separately. For realizing the entire debt, creditor may sue any
heir having possession of the whole or a part of the estate without joining other heirs as co-
defendants. The decree passed by the court would be binding on all heirs whether they were
impleaded in the suit or not.

However, the decree against some of the heirs would not be binding on the heirs not impleaded
in any of the following three circumstances:

19
(i) Where it is established that there has been fraud or collusion between the creditor and the heir
impleaded, or

(ii) Where there are other circumstances which indicate that there would not be a fair trial, or

(iii) Where the heir, who was not impleaded, had some special defence but could not get the
opportunity because of his absence from the proceedings.

B. Extent of Liability of Legatee for Debts

The legatees also derive benefit from the estates of a deceased Muslim. Therefore, the creditors
of the deceased may enforce their claim also against the legatees, if any. Payment of the debt of
deceased is given priority not only to rights of heirs but also to the rights of the legatees.

C. Widow as Creditor

Unpaid dower is an unsecured debt. A widow, whose dower remained unpaid, is like any other
creditor of the deceased Muslim. But the widow has no right to claim priority over the creditors
of her husband.

20
ALIENATION OF ESTATE
BEFORE PAYMENT OF
DEBTS
A. Alienation of his own share- Any heir may, even before the distribution of the estate, transfer
his own share, and pass a good title to a bona-fide transferee for value, notwithstanding any debts
that might be due from the deceased. Accordingly, an heir may dispose off his own share through
sale. Mortgage, lease, exchange etc. before effecting a partition and, before payment of the debts,
if any.

B. Transfer of co-heirs share- An individual heir has no rights to transfer the share of other co-
heirs. If there is only one heir of a deceased Muslim, the heir could validly alienate the whole of
the estate he inherits to satisfy any debt of the deceased. But, if there are several heirs of the
deceased and the whole estate of the deceased is in possession of only one heir, he has no power
to alienate the shares of other heirs, even for discharging the debts of the deceased.

C. Transfer creating a Charge- If the share transferred by an heir is a share in immovable

property, and the transfer is made during the pendency of a suit in which a decree is passed
creating a ‘charge’ on the estate, the transferee will take share of the heirs subject to the charge.

21
CONCLUSION
The administration of the estate of a deceased Muslim is governed by one uniform law, viz., the
Indian Succession Act, 1925. The concept of administration of estates was introduced in India for
the first time during the British rule 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. But the substantive law 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
death.

The administration of estate means that the estate of the deceased is to be applied successively to
the payment of funeral expenses (not the amount spent in ceremonies performed for securing the
peace of the soul of the deceased), expenses of proceedings for obtaining probate or letters of
administration, wages and services rendered to the deceased within three months of his death,
debts of the deceased, and legacies. The remaining estate is to be distributed among the heirs.

Immediately after the death of a Muslim his property devolves on his legal representatives –
Executor, Administrator and Heirs and all the assets of the deceased vest in him in successive
order of preference.

22
BIBLIOGRAPHY

BOOKS REFERRED

 PROF. V.P. BHARATIYA, SYED KHALID RASHID’S MUSLIM LAW (5 ed 2017).

WEBSITES REFERRED

• www.google.com

• en.wikipedia.org

• www.legalservicesindia.com

• www.lexisnexis.com

23