THE MUSLIM LAW OF INHERITANCE
The Muslim law of inheritance is a superstructure constructed on the foundation of Pre Islamic customary law of succession. In Islamic law distinction between the joint family property and the separate property has never existed. Since under Muslim law all properties devolve by succession, the right of heir-apparent does not come into existence till the date of the ancestor. Succession opens only on the death of the ancestor, and then alone the property vests in the heirs.
This superimposition of the koranic principles on the customary law of inheritance has led to divergence of opinion among the Shias and Sunnis resulting in the propagation of two different rule of inheritance:
1). The Sunni/Hanfi allowed the framework or principles of the pre-Islamic customs to stand; they develop or altered those rules in the specific manner as mentioned in the koran, and by the prophet.
2). The Shias diduce certain principles which they hold to underline the amendments expressed in the koran, and thus raise up a completely altered set of principles and rules derived from them.
Sunni/Hanfi law of Inheritance
Under any law of interested succession two questions that arise are;
1) Who are the heirs of the deceased.
2) To what share the heirs are entitled.
The Islamic law superimposed on the customary structure certain blood relations who are either equally near or more near to the diseased than the customary heirs.
Thus sons or sons sons how low so ever is entitled to inherit under the customary law the koran superimposed daughter, son daughter or son son daughter how low soever and gave her a specified share since sons and daughter were included it was logical to include mother and father similarly Since sons sons and sons daughter were included it was logical to include to true grandfather and true grandmother.
Today’s newly created via the Quran allots a specific share these new heirs are commonly called “sharers”.
The sharers are allotted their specified share than whatever is left after allotting shares to the sharers the rest-residue is divided among the customary heirs. These heirs are commonly called “Residuaries”.
The Sunni law lays down that in the the absence of the sharers and the Residuaries the estate passed to other relations who are called “distant kindered”. The distant kindred are those relation of the deceased who are neither sharers nor Residuaries.
On the failure of distant kindred, in modern india, the esstate of the deceased goes to the state by escheat.
Thus, under the Shunni/Hanfi law the heirs of the diseased Muslim male or female fall under the following classes:
I) The sharers,
II) The residuaries,
III) The distant kindred,
IV) The State by escheat.
I) The sharers;
The shares are twelve in number they are given specific shares
In the case of some sharers, their shares very under certain circumstances. Some sharers under certain circumstances do not inherit as sharers but as Residuaries.
When there are sharers and a residue of estate is left after allotting them their shares or when there are no sharers, then whatever is left in the former case, and the entire estate in the latter case,goes to the residuaries
The residuaries may be classified into:
Distribution of assets among the sharers and the Residuaries;
Among the heirs the sharers are to be given their share first and then the residue is to be distributed among the residuaries.In the absense of both the sharers and residuaries, the estate develops on the distant kindred in their absence the estate goes to the State.
The general rule of preference is that a nearer heir excludes a remoter one. Thus if a Muslim dies leaving a son and a grandson then son alone will inherit and the grandson will be excluded though both are Residuaries similarly, if a Muslim dies leaving behind a father and a true grandfather then the father alone will inherit and the true grandfather will be excluded even though both are sharers. Among the residuaries the descendant are preferred over ascendants and collaterals, and ascendants are preferred over collaterals. Among the collaterals the descendants of a nearer ancestors are preferred over the descendants of a remote ancestors.
When all the heirs claiming property are equally near they share equally with the rider that a male heir (GENERALLY)take double the portion of a female heirs.
when one is related to the diseased through another, one does not inherit as long as that another is alive. Thus father excludes both a brother and sister however brother and sister are not excluded by the mother the reason is that when the mother is alive she cannot claim to inherit the entire estate when there is no other heirs, she take part of the estate as a sharers and the rest by return.
In the Shia scheme of inheritance the following five heir are always entitled to a share in the estate, namely, husband, wife, child, father and mother. These heirs are called primary heirs. Next to them are “substitutes” they are the substitute of the last three primary heirs these are child of son how low soever, true grandfather, and true grandmother.
Husband and Wife
If a Muslim male dies leaving behind a widow and children, then the widow take 1/8 and the residue that is 7/8 goes to the children, if he dies leaving behind a widow and no child then the window take 1/4. If he dies leaving behind more than one widow then 1/8 when there are children, or 1/4 when there are no children is distributed among them equally.
if a Muslim female died leaving behind her husband and children then the husband take 3/4 as a sharer and the residue of 1/4 goes to the children. If she dies leaving behind no child then the husband take 1/2 as a sharers.
Father and True Grandfather
The father is always an heir. Under no circumstances can he be excluded from inheritance. The true grandfather being a substitute is always excluded by the father.
In certain circumstances the Father may take in dual capacity, as the sharer and as a residuary. Thus where a Muslim dies leaving behind his father and daughter, then the daughter take 1/2 as sharer, the father take 1/6 as sharer, and the residue of estate that is 1/3, he take as residuary, thus the father will take (1/6 + 1/3 =1/2). In this situation the position of grandfather in the absence of father will be the same, since he is a substitute for the father.
Mother and True Grandmother
A mother is never excluded from inheritance. She take 1/3 where there are no children, and she takes 1/6 when there are children. The true grandmother inherit in certain circumstances:
a) The maternal grandmother is excluded by mother or nearer true grandmother, paternal or maternal.
b) The paternal grandmother is excluded by the father, the mother and by a nearer true grandmother, paternal or maternal as well as by a nearer true grandfather.
The mother take 1/6 share if a Muslim dies leaving behind two sisters or one brother and a sister (full, consanguine or uterine). In the presence of father, sister do not inherit. It is curious aspect of Muslim law that an heir may be totally or partially excluded from inheritance by another, yet his presence may exclude another heir partially or totally.
Thus, P dies leaving behind his mother, M, father, F, two full sisters, FD and FD1. M will take 1/6, as on account of two sisters, her share is only 1/6. But FD and FD1 are excluded on account of the presence of F.F will take the remaining 5/6.
When a Muslim dies leaving behind husband /wife, mother and father, the rule is that mother will take only one third of what is left after allotting the share to the wife/ husband.
Thus a Muslim died leaving behind her father F, her husband H, and her mother M. H, as sharer will take 1/2 ( the rule is that whether there is no child or child of a son how low soever, he takes 1/2 share). The mother will take 1/3 of1/2, i.e.,1/6. F will take as a residuary heir the remaining 1/3.
Daughter and sons daughter how low so ever
The daughter take a share in the estate of the deceased parent, when there is no son. when once she take 1/2:when two or more all of them together take 2/3. With son she takes as a residuary.
When daughter alone is the heir, she take her 1/2 share and the other half goes to her as a residuary.
The sons daughter takes 1/2, when one,2/3 when two or more, in the absence of sons, daughter higher sons sons sons, daughter or equal sons sons with equal sons sons sons, she take as a residuary. The son’s daughter take per capita and not per stirpes. This mean that the share of son’s daughters is divided into as many part as are sons daughter, irrespective of the number of sons. Under the Hanfi law, the son’s daughter inherit in her own right, and not as a representative of the Son.
NOTE: The son’s daughter is not excluded when there is only one daughter but take 1/6 as a sharer.
Thus, P dies leaving behind his father F, mother M, daughter D, and four daughter of a predeceased son, SD, SD1, SD2, SD3. In this case, F will take 1/6 as sharer, M will take 1/6 as sharer, D will take 1/2 as sharer and SD, SD1, SD2, SD3, together will take 1/6 each taking 1/24.
The sister is a sharer, one sister take 1/2 share; two or more take 2/3.
But she is not a primary heir. She takes only in the absence of son, son son how low soever, father and true grandfather.
With full brother (and in certain cases with daughter) she become a residuary.
If there are more than one full sister, consanguine sister is excluded.
But where there is only one sister, then consganuine sister take 1/6.
P dies leaving behind a husband H, and a sister FD. H will take 1/2 and FD will take 1/2.
P dies leaving behind a full sister FD, three consanguine sisters, CS1, CS2, CS3, one uterine sister US, one uterine brother UB. FD will take 1/2, CH1, CH2, CH3 will take 1/6, each taking 1/18. UB and US together will take 1/3 each taking 1/6.
Uterine brother and Uterine sister
The uterine brother and uterine sister are not primary heir. They inherit only in certain circumstances.
a) The uterine brother and uterine sister excluded by a child, son of a child how low soever, father, true grandfather
b) A full brother or a full sister do not exclude a uterine brother or a uterine sister.
c) Whenever the uterine brother and sister inherited they take equal share (the rule of male taking double portion does not apply to them)
d) The uterine brother and uterine sister take 1/6 share. Where there are more than one uterine brother or uterine sister, they together take 1/3 and between them share it equally:
P dies leaving behind two full sister and two Uterine sisters. The full sister together will take 2/3, each taking 1/3 and uterine sister together will take 1/3 each taking 1/6.
Residuaries: Distribution of Assets
All residuaries are related to the deceased through males: residuaries may be classified as
a) Descendants of the deceased
b) Ascendants of the deceased and
c) Collaterals of the deceased.
The collateral may be further divided into i)descendant of the deceased father and ii)descendants of the deceased father fathers how high soever.
It should be noted that six sharers inherit as residuaries in certain circumstances these are:
II)True grandfather how high soever
V)Full sister and
VI) Consganuine sister.
Of these the father and true grandfather inherit in certain circumstances, both as sharers and residuaries. No other heir can inherit in double capacity. There are only four females who inherit as residuaries, and they inherit in that capacity along with the male of equal proximity.
For instance daughter can neither succeed as residuary with sons sons not can sister succeed with brother son.
For example when Muslim dies leaving behind two daughter D and D1, a sons sons Sons, SSS, sons daughter SD and sons sons daughter SSD, then D and D1 together will take 2/3 sharers, SSS 1/6 as Residuaries, SD 1/12 as residuaries SSD 1/12 as residuaries.
Doctrine of Aul(increases) and Radd(return)
In doctrine of Aul : The sum of shares allotted to various heir according to their entire entitlement,
I) May be in access of the unity, or
II)may be less than the unity.
The former situation is solved by the application of doctrine of Aul or increase and the latter by the application of doctrine of Radd or return.
A) Doctrine of Aul or increase
when the sum total of the shares allotted to various heir in accordance with their entitlement exceeds the unity, then the doctrine of Aul lays down that the share of each heir should be proportionately reduced. This is done by reducing the fractional share to the common denominator. Since this is done by increasing the denominator the doctrine has been the name of increase(aul) though in fact, that share are proportionately reduced.
Ex:P dies leaving behind her husband H, two full sister FD and FD1 and mother M, they will be allotted the share as under:
FD and FD1 -2/3
The proportionate reduction of share is achieved by increasing the denominator from 6 to 8. Thus,the share of the respective share will be: H will take 3/8, FD and FD1 will take 4/8 and M will take 1/8.
B) Doctrine of radd or return:
This doctrine recognizes one exception, that neither the husband nor the wife is entitled to the return so long as there is alive another sharer or a distant Kindered.
The formula in the case of return is to reduce the common denominator.
For ex: P dies leaving behind his mother M and his daughter D. M will take 1/6 and D will take 1/2. There remain a surplus of 1/3. Since there is no residuary, 1/3 will return to D and M. M share will increase to 1/4 and D share to 3/4.
III) Distant kindred
In the absence of the sharers and the residuaries the estate devolves on the distant kindered. There is only one case in which the distant kindered inherits along with the sharer. When the only surviving sharers is a husband or wife and there is no residuary, then the husband and wife take his or her share, and the rest of the estate goes to the distant kindered.
Distribution of assets among the distant kindred.
1)When among the claimants there are descendants, ascendant and collateral, the descendant distant kindreds are preferred over a ascendant distant kindred and collateral distant kindred. When the claimant distant kindred are ascendant and collaterals, then ascendants are preferred.
2)A)when all claimants are descendants, then the one who has fewer degree of descent will be preferred.
B)If all of them have equal degree of descent, then the children of the sharers and residuaries are preferred over children of distant kindred.
C) the order of preference among the descendants is as under:
I) Daughters children
II)Sons daughters children
IV)Sons sons daughters children
V)Daughter great-grandchildren and sons grandchildren and
VI) The other descendants of the deceased in the like order.
D)If the claimants have the degree of descent and the sexes of intermediate ancestors do not differ, then all the claimants take per capita male taking double portion.
E)If the intermediate ancestors differ in their sexes than the following rules apply:
i)When there are two claimants, each claiming through his own line of ancestors, the rule required to stop at the stage of descent, where sexes differ and assign the share at this stage assigning double portion to male and one portion to female ancestors.
ii) Where there are three or more claimants and each is claiming through a different line of ancestors, then the rule lays down to stop at the line where sex differ and to allot shares there, male getting double portion and female getting one portion. But the shares so allotted to the ancestors do not descends on the claimants. But the share of all male ancestors on one side and of female ancestors on the other are pooled together.
iii)When there are two or more claimants claiming through the same intermediate ancestors, the rule is to count each of such ancestor if male, as many males as there are claimants claiming through him and, if female as many females are there claimants claiming through her, irrespective of the sex of the claimant.
On the failure of the descendants distant kindered, the property devolves on the ascendant distant kindered.
A)among the ascendants distant kindered, the nearest is mother’s father, if he exist he will take the entire estate.
B)On his failure, estate will devolve on such false grandfather or grandmother who trace their ascend through a sharer, father’s mother fathers and mothers mothers father.
C)On the failure of fathers mothers father and mothers mothers father, the property will devolve on the false ancestors in the third degree namely, mother’s father father and mothers fathers mother.
the rule of preference among the ascendant distant kindles may be stated that
I) The nearer in degree excludes the remoter,
II)Among the claimants of the same proximity, those related to the intestate through shares are preferred to those related through distance kindered,
III)Among the claimants of both the paternal side and maternal side of equal degree, the claimants on the paternal side will get double the portion over the claimants on the maternal side,i.e., 2/3 : 1/3.
The collaterals was divided under three categories: In the first comes nephews and nieces and their descendants. In the second category fall uncles and aunts and their descendants. In the third category are descendants of the remotor ancestors, the great grandparents how high soever.
Among the collateral there are following rule of exclusion:
I) A claimant nearer in degree excludes the remoter.
II)Among the claimants of equal proximity, the children of residuaries are preferred to those of distant kindered.
III)Among the claimant of same degree and not excluded by virtue of, the descendants of full brother exclude those of consanguine brother and sister;but the descendants of full sisters do not exclude the descendants of consganuine brother and sister,the descendants of the uterine brother;and sister: do not exclude the descendant of consganuine brother and sister;the descendants of uterine brother and sister are not excluded by the descendants of either the full brother and sister or by consganuine brother and sister, they inherit along with them.
IV) State: as an Heir by Escheat
In modern india it is an established rule that the estate of an heirless Muslim develops on the State(“Sheikh Abdul Rehman v/s. Sheikh Wali Mohamed AIR 1992”). The State take the property of an heirless person by escheat but take it subject to any trust, charge or liability affecting it.(“Cauvery Vancata V/s. Collector of Manulipatan AIR1863”)
Author: vivek khandelwal,
Amity University Rajasthan