Intestate Succession Under Muslim Law

MUSLIM INHERITANCE INHERITANCE Succession under Hanafi Law As far as Muslims are concerned, the law of succession falls into two broad streams, the Hanafi law of succession and the Shia law of succession. Both these laws of succession form  part of the common common law of India and are are recognized recognized as having having the force of law by virtue virtue of the Shariat Laws (Application) Act. The Muslim law of succession is derived from the Sharia. The primary source of the Muslim law of succession flows from the Holy Quran Ijmas, the Sunnas, and the Qiyas, from all of which rules pertaining to succession can be gleaned. The Muslim law of inheritance is a superstructure constructed on the foundation of preIslamic customary law of succession. In Islamic law distinction between the joint family property and the separate property has never existed, and in India Muslim law does not recognize the joint family property. Since under Muslim law all properties devolve by succession, the right of heir-apparent does not come into existence till the death of the ancestor. Succession opens only on the death of the ancestor, and then alone the property vests in, the heirs. Customary Principles of succession

In the pre-Islamic Arabia, the law of inheritance was based on, what is called, comradeshipin-arms, and, on this basis, even the wife and the children were excluded from inheritance. The four basic principles of the pre-Islamic law of succession were: first, the nearest male agnates or agnates succeeded to the total exclusion of remoter agnate. Thus, if a Muslim died leaving' behind a son, and a son of a predeceased. Son, then the son inherited the entire  property, and the grandson was totally excluded. excluded. Secondly, Secondly, females were excluded excluded from inheritance; so were cognates. Thus, a daughter or a. sister or a daughter's son or sister's son could never succeed to the property. Thirdly, the descendants were preferred over ascendants and, ascendants over collaterals. For instance, in the presence of a son, father could not succeed. Similarly, in the presence of father, brother could not, inherit. Fourthly, where there were more than one male agnates of equal degree, all of them inherited the property and shared it equally, taking per capita . For example, if a person died leaving behind three  brothers, all of them succeeded succeeded and each took took one-third of the estate. estate. Islamic Principles of succession

The Prophet interposed the following few principles on the aforesaid principles of customary law of succession. First, the husband and. the wife, being equal, is entitled to inherit to each other. Secondly, some near females and cognates are also recognized and enumerated as heirs. Thirdly, the parents and certain other ascendants are made heirs even when there are descendants. Fourthly; the newly created heirs (those who were not entitled to inherit under customary law) are given specified shares. Fifthly, the newly created heirs inherit the specified shares' along with customary heirs, and not to their exclusion. After allotting the specified share to the newly created heirs, who are called sharers, whatever is left (residue)and the scheme is so laid down that something is usually left-goes to the customary heirs who are called residuaries.

Definitions: Agnates - An agnate is a. relation who is related to the deceased whole through males. Thus, the following are the examples of agnates, son, son's son,son's son's son, son's daughter, son's son's daughter, father's father, father's,mother, father's father's .father; father's father's,mother.. Cognates- A cognate is a relation who is related to the deceased through one, or more females. For example, the following are cognates: daughter's son, daughter's daughter, mother's father, father's mother's father. Collaterals- Collaterals are descendants in the parallel lines from the common ancestor or ancestress. Collaterals may be agnates or cognates. Thus, consanguine brothers and sisters, paternal aunts and uncles are agnate collaterals. Maternal uncles , aunts, uterine  brothers and sisters are Cognate, collaterals. Heir- A person who is entitled to inherit the estate of another after his deaths known as an heir. True grandfather- A male ancestor between whom and the deceased no female intervenes is known as the true grandfather. For instance, the father's father, father's father's father and his father how high so ever are all the true grandfathers. False grandfather- A Male ancestor between whom and the deceased, a female intervenes is known as the false grandfather. For instance, mother's fa ther, mother's father, father’s mother's father are false grandfathers. True grandmother -   A female Ancestor, between whom and the deceased no false grandfather intervenes are known as the tr ue grand mother. Thus, father’s   mother, mother's mother, father's mother's mother, father's father's mother , Mother’s mother's mother are all true grandmothers. False grandmother- A female ancestor between whom and the deceased a false grandfather intervenes. Thus, mother's father's mother is a false grandmother. Son's son how low so ever- Lineal male descendants are known as son's son how low so ever. For instance, son's son, son's son's son and so on, are all son's son how low soever. . Son's daughter how low soever- The female children of lineal male descendants are known as son's daughter how low soever~ Thus, son's daughter, son's son's daughter, and so on, "are also son's daughter how low soever. Inheritance under Sunni (Hanafi) Law Under any law of intestate succession, two questions that arise are: (i) Who are the heirs of the deceased, and (ii) To what share the heirs are entitled. Muslim law-givers have gone into details in laying down the categories of the persons who are entitled to participate in the inheritance, and the respective shares to which each category of heirs are entitled to receive.

Heirs Islamic law superimposed on the customary structure certain blood relations who are either equally near, or more near, to the deceased than the customary heirs. Among these new heirs are certain females, and some ascendants and collaterals. The spouse of the deceased is allowed to take a share in the inheritance, as a. relation by affinity. The sharers are allotted their specified shares. Then whatever is left after allotting share 'to the sharers the rest-residuary is divided among the customary heirs. These heirs are commonly called "residuary". This term came into vogue on the assumption that after giving specified shares to the sharers, whatever is left is given to them.

Distribution of Assets among the Sharers and Residuaries Among the heirs the sharers are to be given their share first, 

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Then the residue is to be distributed among the residuaries. In the absence of the sharers, the residuaries take the entire estate. In the absence of both the sharers and the residuaries, the estate devolves on the distant kindred. In their absence, the estate goes to the State.

The peculiarity of the Muslim law of inheritance is that although the sharers are class I heirs and the residuaries are class II heirs, they together share the property. After shares have been allotted to sharers, the remaining property goes to the residuaries. Thus, if a Muslim dies leaving behind a mother, M, a son, 5, and a daughter's son, DS, then mother as sharer will take 1/6 and S will take the remaining 5/6 as residuary. DS will be totally excluded from the inheritance, since he is distant kindred. There is only one case when a distant kindred inherits along with a sharer, viz., when the sharer is a husband or wife and there is neither any other sharer nor a residuary, then the distant kindred inherits along with the husband or the wife. Thus, if a Muslim dies leaving behind a widow, W, and full sister's son FSS (who is distant kindred), then W will take 1/4 as sharer, and the residue of the estate, namely, the 3/4 will go to FSS. .

Husband and Wife If a Muslim male dies leaving behind a widow and children, then the widow takes 1/8, and the residue (i.e., 7/8) goes to children. If he dies leaving behind a widow and no child, then the widow, takes 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 dies leaving behind her husband and children, then the husband takes 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 takes 1/2 as a sharer. Thus, a Muslim female dies leaving behind her husband, H and her father F. H will take 1/2 as a sharer and F will take the remaining 1/2 as residuary.

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. A nearer grandfather always excludes a remoter grandfather. The position of father as an heir may be discussed under the following circumstances: (a) Where the deceased had left children, the' father takes 1/6 share. Thus, when P dies leaving  behind his father and a son. the father will take 1/6 and the son, will take 5/6, (b) Where there are no children (or child) or agnatic descendants, the father and, in his default, the grandfather, takes as a residuary, (c) Where a Muslim dies leaving behind a mother and a father, the mother takes 1/3 as sharer, and the father takes 2/3 as residuary, (d) In certain circumstances the father may take in dual capacity, as a 'sharer and as residuary. Thus, where a Muslim dies leaving behind his father and a., daughter, then the daughter takes 1/2 as a sharer, the father takes 1/6 as sharer and' the residue of estate, i.e., 1/3, he takes as a residuary: Thus, the father will take 1/6+1/3=1/2. In this situation the position of the grandfather (in the absence of the father) will be the same, since he is a substitute for father. The true grandfather is not an heir under Shia law.

Mother and True Grandmother Mother is never excluded from inheritance. She takes 1/3 where there are no children, and she takes 1/6 where there are children. The true grandmother inherits in certain circumstances: (a) the maternal grandmother is excluded by mother or nearer true grandmother, paternal or maternal. (b) The paternal true 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; Thus, P, a Muslim, .dies leaving behind his mother M, sons son, S and a daughter, D. M will take 1/6 as sharer, and the rest will go to D, S and S1 as residuaries: D taking 1/6, S taking 2/6 and S1 taking 2/6. (c) The mother takes one-sixth share if a Muslim dies leaving behind two sisters, or one  brother and a sister (full, consanguine or uterine). In the presence of the father, sisters do not inherit. It is a 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, PO and PD1. M will take 1/6, as on account of two sisters her share is only 1/6. But FD and PD1 are excluded on account of the presence of F. F will take remaining 5/6.If the deceased dies leaving behind mother and only one sister or one brother and no child, then the mother takes 1/3 share. Thus, P dies leaving behind his mother, M, a sister PD and father F: Mother will take 1/3; D will be excluded because of the father. F will take the remaining 2/3 (d) When a Muslim dies leaving behind husband/wife, mother and father, the rule is that the mother will take only 1/3 of what is left after allotting the share to the wife/husband. Thus, a Muslim dies leaving behind her father P, 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 of 1/2, i.e., 1/6. F will take as a residuary heir the remaining 1/3.

The true grandmother is not an heir under Shia law.

Daughter and Son's Daughter how low soever The daughter takes a share in the estate of the deceased parent, when there is no son, when once she takes 1/2: when two or more, all of together take 2/3. With sons she takes as a residuary. When daughter alone is the heir, she takes her half share and the other half to her as residuary. The son's daughter takes 1/2, when one, 2/3 when two or more, in the absence of son, daughter's higher son’s son’ s son, daughter or equal son's son with equal son's son's son, she takes as residuary. The son's daughter is not an heir under Shia law.

Sisters The sister is a sharer, one. sister takes 1/2 share; two or more take 2/3. (a) But she is not a primary heir. She, takes only in the absence of a son, son's son, how low soever, father and true grandfather. (b) With full brother (and in certain cases with daughter) she becomes a residuary. (c) If there are more than one full sister, consanguine sister is excluded. But where there is only one sister then consanguine sister takes 1/6.

Uterine Brother and Uterine Sister The uterine brother and uterine sister are not primary heirs. They inherit only in certain circumstances. (a) The uterine brother and uterine sister are excluded by a child, son of a child how low soever, father, true grandfather. (b) A full brother or a full sister does not exclude a uterine brother or a uterine sister. (c) Whenever the uterine brother and sister inherit they take equal share; the rule of male taking double portion does not apply to them. (d), 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.

Residuaries: Distribution of Assets We would proceed to give a few more examples where the residuaries predominate. . 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 collaterals may be further divided into: (i) descendants of the deceased's father and (ii) descendants of the deceased's father's father how high soever. .

It should be noted that Six' sharers inherit as residuaries in certain circumstances. These are: a) the father, b) true grandfather how high soever, c) daughter, d) son's daughter, e) full sister and f) Consanguine sister.

Illustrations:

(i) P .dies leaving behind daughter, D, son's daughter, SD, son's son's daughter, SSD, and son's son's son, SSS. 0 will take 1/2 as sharer, SD will take 1/6 as sharer, SSS and SSD will take the remaining as residuaries, SSD taking 1/9 and SSS taking 2/9. .', . (ii) P, a Muslim, dies leaving behind two daughters, D and D1, a son's daughter, SD, and son's son's son, SSS. D and D1 together will take 2/3, as sharer, and the remaining will go to SD, SSS as residuaries, SSS taking 2/3 and SD taking 1/9 (in accordance with the rule that male takes double portion).

Shia law; General principles The basic differences between the Shia law and the Hanafi law arise on account of the fact that the latter interpret the Quranic rules strictly and hold that the Quranic rules are nothing  but transposition of certain rules on the customary law of succession, while the former interpret the Quranic rules so widely as if they lay down an independent scheme of succession. Thus, the Shia interpretation of  the Quranic rules does not recognize the prior rights of agnates over cognates or of males over females. With the exception of the rights of husband and wife, the Shia law lays down that the estate of the deceased devolves on blood relations equally, though among themselves they take per stripe: the females are allotted half the share allotted to the males in each grade. This also results in descendants, ascendants and collaterals inheriting side by side.

Doctrines of Aul (increases) and Radd (return) In a system of law which assigns fixed shares to heirs, two anomalous situations are likely to arise: The sum of shares allotted to various heirs according to their 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 the doctrine of aul or increase, and the .latter by the application of the doctrine of  radd or return.

Doctrine of aul or increase When the sum total of the shares allotted to various heirs 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 shares to be common denominator. Since this is done by increasing the denominator, the doctrine has

 been given the name of increase (aul) though in fact the shares are proportionately reduced. The doctrine can be explained by an example: P dies leaving behind her husband; H, two full sisters, FD and FDl, and Mother M They will  be allotted the shares as under: .

H....1/2 or 3/6 FD & FD1...2/3 or 4/6 M.... l/6

The proportionate reduction of shares is achieved by increasing the denominator from 6 to 8. Thus, the shares of the' respective shares will be: H will take 3/8, FD &: FD1 4/8 and M 1/8.

We may take another example: P dies leaving husband, H, full sister, FD, two uterine sisters, MD and MDI, two uterine brothers, MS and MSI and mother, M. All these heirs are sharers. In accordance with their entitlement, their shares will come to: M 1/6, H 1/2, FD 1/9, MD, MDI, MS and MS1, 3/4. This will be reduced to 1/9, 3/9, 3/9 and 2/9 respectively. Under Shia law the share of only following heirs should be proportionately reduced: 

Daughter

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Full Sister

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Consanguine Sister

But not from the share of Uterine Sister

Doctrine of radd or return When there is surplus left after allotting the shares to the sharers in accordance with their entitlement, and there are no residuaries to take the surplus, then the doctrine of return lays down that the surplus is to be distributed among the sharers in proportion to their respective shares. This doctrine, recognizes one exception, viz., neither the husband nor the wife is entitled to the return so long as' there is alive another sharer or a distant kindred. But in India this is not the law. In the absence of a sharer or distant kindred, the surplus, returns to the husband or the wife, as the case may be. Thus, under Muslim law of modern India, the doctrine of return lays down: (i) the surplus is distributed among the sharers in proportion to their shares. (ii) But the husband or the wife is not entitled to return, so long as there is a sharer or distant kindred alive. (If there is no sharer or distant kindred, then the surplus returns to the wife or husband. Examples ' (i) P dies leaving behind his mother M, and his daughter D. M takes 1/6 and D takes 1/2.There remains 'a surplus of 1/3. Since there is no residuary, 1/3 will return to D and M. M's share will be increased to 1/4 and D's share to 3/4'. The formula in the case of return is to reduce the common denominator.

(ii) P dies leaving behind his wife, W, and none else.' W will take 1/4 as Sharer and 3/4 by return. When, there is no other heir, the doctrine of return applies to the spouses. Escheat in Muslim Law

The Doctrine of Escheat is accepted by Muslim Law. However, the property escheated does not devolve upon the Government by way of inheritance as ultimus haeres but as bait-ulmal (public treasury) for the benefit of Mussalmans only. According to Sunni Law, on failure of all the heirs and successors, the property of a deceased Sunni Mohammedan escheats to the Government. According to Shia Law, on failure of all the natural heirs, the property of a deceased Shia Mohammedan escheats to the Government

It is suggested to go through class notes also.