Muslim Law of Inheritance

INTRODUCTION

Inheritance is the entry of living persons into possession of dead persons „property  „property  and exists in some form wherever the institution of private property is recognized as the basis of the social and economic system. The actual forms of inheritance and the laws governing it, however, differ according to the ideals of different societies.

The law of inheritance in Islam is based upon five main considerations. First is to break up the concentration of wealth in individuals and spread it out in society. Secondly, it is to respect the property right of ownership of an individual earned through honest means. It also considers hammering in the consciousness of man the fact that man is not the absolute master of wealth he produces but he is its trustee and is not, therefore, authorized to pass it on to others as he likes. It also aims to consolidate the family system which is the social unit of an Islamic society and to give incentive to work and encourage economic activity as sanctioned by Islam.

Prior to Islam, and within the Arabian Peninsula, the system of inheritance was confined to male descendants. Women not only did not have any share of inheritance, but they themselves were inheritable too. Siblings from the mother's side, like half-brothers or half-sisters, were completely excluded. Other Semitic cultures also practiced primogeniture, under which all property went to the eldest male child.

The Qur'an The Qur'an introduced a number of different rights and restrictions on matters of inheritance, including general improvements to the treatment of women and family life. The Qur'an also presented efforts to fix the laws of inheritance, and thus forming a complete legal system. This development was in contrast to pre-Islamic societies where rules of inheritance varied

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considerably. Furthermore, the Qur'an introduced additional heirs that were not entitled inheritance in pre-Islamic times, mentioning nine relatives specifically of which six were female and three were male. The laws of inheritance in the Qur'an also included other male relatives, like the husband and half-brothers half-brothers from the mother‟s side, which were excluded from inheritance in old customs. In general, the Qur'an improved the status of women by identifying their share of inheritance in clear terms. It also completely forbade the practice of inheriting widows. Joseph Schacht states that "this is not meant as a regular legal ordinance, but is part of the Qur'anic endeavor to improve the position of women. ”  The Qur'an does not explicitly mention the shares of male relatives, such as the decedent' the decedent's s son, but provides the rule that the son's share must be twice that of the daughter's. Muslim theologians explain this aspect of inheritance by looking at Islamic at Islamic law in its entirety, which bestows the responsibility and accountability on men to provide safety, protection and sustenance to women.

In addition to the above changes, the Qur'an grants  testamentary powers to Muslims in disposing their property, in their will, called “waṣeyya” ; Muslims are allowed to give out a maximum of one third of their property. Muslims are also encouraged to give money to the orphans and poor if they are present during the division of property.

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RECENT DEVELOPMENTS

The Qur'an contains only three verses which give specific details of inheritance and shares, in addition to few verses dealing with testamentary power. It has also been reported in Hadith that Muhammad allotted great importance to the laws of inheritance and ordered his followers to learn and teach them. Muslim jurists used these verses as a starting point to expound the laws of inheritance even further using Hadith, as well as methods of  juristic reasoning, like Qiyas. In later periods, large volumes of work have been written on the subject.

This amalgamation of old agnatic customs and Islamic Law led to a number of problems and controversies that Muslim jurists have solved with great ingenuity. Through the use of deductive reasoning, Muslim jurists added three additional heirs: the paternal grandfather, maternal grandmother, and agnatic granddaughter. These heirs, if entitled to inherit, are given their fixed shares and the remaining estate is inherited by the Residuaries. In some cases, they have also upheld the rule of men having twice the share of women in circumstances not readily mentioned in the Qur'an, and tried to deal with complex cases in a variety of different contexts.

This led to some minor differences between jurisprudence schools of the Sunni maddhabs. Also, the laws of inheritance for Twelver Shia, despite being based on the same principles, differ in a number of features due to the rejection of certain accounts of Hadith and based on their understanding of certain events in early Islam. On the other hand, the system of inheritance of the Kharajite Ibadis and Zaidis closely resemble that of the Sunni system. In modern Muslim countries, usually a mixture of different schools of jurisprudence (including Shia) is in effect, in addition to a number of important reforms to the traditional system. The main achievements of such modern systems were the codification of inheritance laws.

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 All the modern writers have admired the Muslim system of inheritance for its utility and formal excellence. Muslim law of inheritance is based on the rules laid down in Qur‟an or through the customs and usage prevalent among the Arabs. In the pre-Islamic world the law of inheritance had so many evils in it. Women had been completely denied the share of inheritance. They were rather regarded as part of the property of the deceased and, therefore, their right to property by inheritance was out of question. In pre-Islamic Arabia and other countries where there had been tribal societies not only women were deprived of the right of inheritance but even weak and sick persons and minor children were given no share in it, as the common principle of inheritance was that he alone is entitled to inherit who wields the sword. Then in certain societies there had existed the law of primogeniture and it exists even today in some of the so-called civilized parts of the world which entitles only the eldest son to inherit the whole of the father's property or to get the lion's share.

Islam introduced so many reforms in the laws of inheritance for the betterment of Muslim lives equally. It defined and determined in clear-cut terms for the share of each inheritor and imposed limits on the right of the property-owner to dispose of his property according to his whim and caprice. It made the female, who had been previously thought a chattel, the co-sharer with the male and thus not only restored her dignity, but safeguarded her social and economic rights. Husband and wife have been made heirs. Parents and ascendants are given rights even when there is a male descendent. It laid the rules for the break-up of the concentrated wealth in the society and helped in its proper and equitable distribution amongst a large number of persons. It gave a death-blow to the law of primogeniture and thus provided the democratic basis for the division of the property of the deceased.

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GENERAL RULES TO INHERITANCE WITH EXCLUSIONS

Inheritance is considered as an integral part of Muslim Law and its application in Islamic society is a mandatory. Muslims inherit from one another as stated in the Qur‟an. Hence, there is a legal share for relatives of the descendents in his estate and property. The major rules of inheritance are detailed in Qur‟an and Hadith.

Following are the major rules of the Muslim law of Inheritance:1. When a Muslim dies there are four duties which need to be performed, viz. Paying funeral and burial expenses, paying off the debts, execute the testamentary will of the deceased (which can only be a maximum of one third of the property), and distribute the remainder of estate and property to the relatives of the deceased according to Shariah Law. After such expenses, remaining property is considered for distribution. Such property includes movable as well as immovable properties. There is no distinction between Ancestral property and Self-acquired property. 2. There is no right of inheritance gained by mere birth. Such right will be a mere chance of survivorship and the property share. Illegitimate person does not inherit from father or son. Similarly, child of a divorcee inherits from his mother and not from father. Such child also will be treated on the same footing of illegitimate person. 3. The allotted share of the property will be allotted immediately after the death of the ancestor. 4. In case of death of heir on whom the share of property is already vested, such share shall be passed on to his/her heir. However, if the ancestor (also called as propositus) is alive and any of his presumptive heirs die, then the share of such deceased heir will not

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be passed on to his / her heirs. It would be still the property of the ancestor / propositus, who is alive. 5. Missing heirs will be given their respective shares if they reappear at the time of such distribution, or else, they would be considered dead. 6. A child in a womb is deemed to be born on the date of conception and if born alive, such child will get share or otherwise such share will be distributed among others.

There are exclusions to the rule of inheritance. It is called as rule of total and partial exclusion. Every person is entitled to inherit under Muslim Law, unless there is something to exclude him. There are two major exclusions, viz. Partial (also known as imperfect) exclusions and Total (also known as perfect) exclusions. In Islamic law, only relatives with a legitimate blood relationship to the deceased are entitled to inherit. Thus, illegitimate children and adopted children have no shares in inheritance. In general, a full brother will exclude a consanguine brother, but not uterine brother. In case where a deceased man leaves a pregnant woman, the unborn child's share will be reserved. Also a woman during the time of waiting (iddat) after divorce is considered as a wife of the deceased for purposes of inheritance. There are even further rules of exclusion and inclusion of different relatives. The only "practical situations" which may cause disqualification are differences of religion and homicide. But schools of Islamic jurisprudence differed whether a Muslim can inherit from a nonMuslim or not. All the jurists agree that intentional or unjustifiable killing would exclude a person form inheritance.   Four persons cannot get inheritance: 

A fugitive slave who has fled away from his master, One who has murdered one‟s predecessor intentionally or un intentionally,  One who professes a religion other than Islam,  One living in Dar-ul-Harb cannot inherit the property of one living in Dar-ul-Islam, and vice versa.

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TYPES OF HEIRS AND THEIR RESPECTIVE SHARES

The first step in the distribution of the estate of a deceased Mohammedan after payment of his mentioned expenses is to allot the respective shares to such of the relations as belong to the classes of heirs. Hanifa Jurists have divided heirs into 7classes; 3 Principle and 4 Subsidiary Classes. In principle classes, there are Qur‟anic heirs (also called Sharers), Agnatic heirs and uterine heirs. Subsidiary heirs are Successor by contract, Acknowledged Kinsman, Sole legatee and the state. There are 5 primary heirs viz, Husband or wife, son, daughter, father and mother.  According to Islam, the heirs have been divided into three classes.

1.

Dhaw-u'l-Fara'id :-

This category is also known as “Sharers”. These are those persons who have a right to definite shares in assets left by the deceased. These sharers are twelve in number, including four males (father, grandfather, uterine brothers and husband); and eight females (wife, single daughter, son's daughter, mother, grandmother, full sister, consanguine sister, uterine sister). Father's share is one-sixth when the deceased leaves a son or a son's son, but if the deceased is not survived by a son or grandson his father will, in addition to this share (one-sixth), also get a share of being 'Asaba. The grandfather's share is like that of father's share but in three conditions:-According to Imam Bukhiri and Imam Muslim, the presence of father deprives even the brothers of their share in the inheritance. But this is not the case with the grandfather. Imam Abu Hanifa is of the opinion that the presence of grandfather deprives the brother of his share in the inheritance.

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If the father of the deceased is alive, then the share of the mother is of what is left from the share of the wife of the deceased. The presence of grandfather does not reduce the share of the mother of the deceased. The grandmother of the deceased has no share in the presence of the father of the deceased but she has a share in the presence of the grandfather. The third set of sharers is uterine brothers and sisters. They are entitled to one-sixth if their number is one, and one-third if they are more than one. The husband's share is one-half of the property of the deceased wife if she has no children, but in case of children it is one-fourth. The wife is entitled to one-fourth if the husband dies childless; otherwise it is one-eighth. Real daughter: one-half when alone, and two-thirds if more than one. If the deceased is survived by a male child also, the daughters are then treated as Asaba and the male child would get double of what falls to the lot of daughters. The granddaughters stand on the same level as daughters. But in case the deceased is survived by one real daughter and one or more than one granddaughter they would get one-sixth. The granddaughter is not entitled to any share if the deceased is survived by a son, but if he is survived by grandsons and granddaughters, they would be treated as 'Asaba and the male grandchild would get double of what goes to the female grandchild. Full sister gets one-half if she is alone and two-thirds if they are more than one. Consanguine sister is entitled to one-half if one, and two thirds if more. Mother is entitled to one-sixth when she has a child or grandchild, and in case of being childless she gets one-third of the share. If the deceased is survived either by paternal grandmother or maternal grand- mother or even by both, they are entitled to one-sixth. The grandmother (maternal) is deprived of her share if the mother of the deceased is alive; and if father is alive the paternal grandmother is deprived of this share.

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2.

Asabat:-

This category is also known as “Residuaries”. When the heirs of the first group have received the respective shares, the residue of the assets falls to the share of those relatives who are called Asaba which, according to the Shari'ah, implies those relatives in whose line of relationship no female enters. This is the second group of inheritors. There is no fixed share of the 'Asabat. If the deceased is not survived by any Dhaw-u'l-Fara'id, the whole of the property falls to their share; and If Dhaw-u'I.Fara'id are there to get their due share, the residue will be taken by the Asabat. Son is the first asabat to get the residue in order of succession. The daughters are entitled to half of the share as given to the son. The grandsons are not entitled to any share in the presence of the son. If the son is not living, then the grandson is entitled to gain share in the inheritance. If there is more than one son, the inheritance will be distributed equally amongst them. The father, grandfather and the great-grandfather are included in the category of Dhaw-u'l-Fara'id. If, however, the deceased is not survived by category of a son, grandson of great-grandson, then the father will fall under the category of 'Asaba, and, in the absence of the father, the grandfather assumes that position. If the deceased is not survived by son, or grandson or father or grandfather, i.e. none amongst the 'Asabat, then the brother, and in the absence of brother his son, and in the absence of son, his grandson will be entitled to share in the inheritance as 'Asaba and the female would also join them in share claiming half of the share as compared with male. If unfortunately the deceased is survived by none of the abovementioned relatives amongst the 'Asabat, then consanguine brother will be entitled to share in the inheritance and he will be preferred to full brother's son. Then it comes the turn of full paternal uncle.

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3.

Dhaw-u’l-Arham:-

The last category of inheritors is known as “Distant-Kindred”, i.e. relations connected through blood who are neither sharers nor Residuaries, like relations connected through females, but it is in extremely rare cases that they get any share in the inheritance. The following relatives come under this category.  The son of the daughter and daughter of the daughter.  The son of the daughter of the son, and daughter of the daughter of the son and their children.   Maternal grandfather, maternal grandfather of the father, the grandfather of the mother, maternal grandfather of the mother, the grandmother of the mother, the children of the sisters, the sisters of the father and those of the mother, etc.

SHARES OF HEIRS

Share Heir One

1/4

Conditions

Exclusion

NA

When there is a child or son‟s child

NA

NA

When there is no child or son‟s child

NA

1/8

When there is a child or son‟s child

NA

NA

When no child or son‟s child

NA

Two or more

Husband 1/2

1/8 Wife 1/4

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When there is son or son‟s son

NA

1/6 plus residue

When there are one or more daughters, son‟s daughters and there is no son nor son‟s son

Father is a sharer and residuary

Residue

When there is no child or son‟s child

 Absence of any child

When there is a child or son‟s child and no father or nearer true grandfather

Excluded by father or nearer true grandfather

1/6 plus residue

When there are Daughters or only son‟s daughters

NA

Residue

When there is a Wife or husband and father

Converted by father

When there is a child or son‟s child or two or more brothers or sisters or

NA

1/6

Father

NA

1/6

True Grandfather

Mother

1/6

NA

NA

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brother or sister and father When there is no child, nor son‟s child and not more than one brother and sister

NA

When there is a wife or husband and father

Converted by father

NA

When no mother or no nearer Paternal grandmother

Mother, Paternal True Grandmother

1/6

NA

When no mother or no nearer Maternal or Paternal grandmother or father, or nearer true grandfather

Mother, Maternal or Paternal grandmother or father or true grandfather

½

2/3

When there is no son

NA

1/3

NA

1/3 plus residue

Maternal Grand Mother (How high so ever)

Paternal Grand Mother (How High So ever)

1/6

Daughter

Converted by son or two or more sons

Residue

Son‟s

1/2

2/3

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When there is no son or

Excluded by son or son‟s

Daughter

son‟s son or one or more daughters or higher son‟s daughter

1/6

NA

When there is no son or son‟s son or one or more daughters or higher son‟s daughter

1/2

Excluded by son or son‟s son of higher grade, or two or more daughters or two or more son‟s daughters of higher grade, or one daughter with two or more son‟s daughters or higher grade Converted by son‟s son of equal or even lower grade

Residue

Full Sister

son of higher grade, or two or more daughters or two or more son‟s daughters of higher grade, or one daughter with two or more son‟s daughters or higher grade

2/3

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When no child or son‟s child or father or brother

Excluded by Son or son‟s so, father or true

grandfather, daughter or son‟s daughter Converted due to full brother or daughters or son‟s daughters, full sisters

Residue

½

Consanguine Sister

2/3

1/6

NA

½

Excluded by Son, Father, or True Grandfather, or full brother or full sister

When one full sister only

Excluded by one or more daughters or son‟s daughters or by two or more full sisters Converted in to Residuary by consanguine brother

Residue

Uterine Brother

When no child or Son‟s child ( How Low So ever), or father or brother or full sister

1/3

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Excluded by Son or Son‟s Son, father or true grandfather or daughter or

son‟s daughter

Uterine Sister

1/6

NA

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Excluded by Son or Son‟s when no child Son, father or or (How Low true So ever) grandfather or son‟s child daughter or son‟s daughter

DOCTRINE OF AUL

It means the doctrine of decrease. In certain circumstances of allotment of share, it may be followed that the total of the share exceeds unity. Then the fraction allotted to each heir will have to be reduced ratably. This doctrine refers to the process of reducing the share proportionately. This doctrine is recognized by Hanifa law and not by Shia Law.

DOCTRINE OF RADD

It means the doctrine of return. In some circumstances, the total of the fractions may be less than unity. There may not be any heir belonging to the residuary to take the residue. In such cases, the residue is returned to the sharer in proportion to their share. This is called Doctrine of Radd.

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WOMEN AND INHERITANCE

In Islam, women are entitled the right of Inheritance. In general circumstances, though not all, Islam allots women half the share of inheritance available to men who have the same degree of relation to the decedent. For example: - where the decedent has both male and female children, a son's share is double that of a daughter's. Additionally, the sister of a childless man inherits half of his property upon his death, while a brother of a childless woman inherits all of her property. However, this principle is not universally applicable, and there are other circumstances where women might receive equal shares to men. For example:-the share of the mother and father of a childless decedent. Also the share of a uterine brother is equal to the share of a uterine sister, as do the shares of their descendants.

Sometimes woman gets double share then share of man, for example if there are only parents and husband, husband will receive half, father gets 1/6 and mother gets 2/6. Also the Qur'an does not discriminate between men and women in cases of kalalah relation.  Kalalah  describes a person who leaves behind neither parents nor children; it also means all the relatives of a deceased except his parents and children, and it also denotes the relationships which are not through [the deceased‟s] parents or children. Islamic scholars hold that the original reason for these differences is the responsibilities allotted to spouses. A husband in Islam must use his inheritance to support his family while a wife has no support obligations.  Additionally, Arab society traditionally practiced the custom of bride price or dower rather than dowry; i.e., the man paid a gift to his wife or her family upon marriage, rather than the opposite, placing a financial burden on men where none existed on women. This custom received Islamic sanction.

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DISTINCTION BETWEEN SUNNI AND SHIA LAW OF INHERITANCE

Sr.

SUNNI LAW

SHIA LAW

1.

Priority of agnates over cognates.

Deny any priority to agnates over cognates.

2.

Give importance and preference to full blood over half blood.

Treat all equally.

3.

Give importance to the decisions of the three Caliphs-Abu Bakr, Umar and Usman.

Disregard the details of Sunni system which rests on the decisions of the three Caliphs Abu Bakr, Umar and Usman.

4.

Interpret Qur‟an strictly, keeping rules intact.

Interpret Qur‟an as altering the old principles themselves and giving rise to new set of principles.

5.

Preference to male over female.

Both are on equal footing.

6.

Follow strict classification of heirs given in Qur‟an.

The classification becomes important only in cases of quantum of shares.

7.

Method of interpreting Qur‟an is literal.

Method of interpreting Qur‟an is characteristic.

8.

Distant Kindred are postponed in favour of sharers and Residuaries.

Distant Kindred inherit along with sharers and Residuaries.

9.

Doctrine of Aul is applicable to all sharers alike.

Doctrine of Aul operates against daughter and sister only.

No.

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10.

Doctrine of Radd does not apply to wife and husband in presence of any other heirs. However, in absence of sharers, both get by return.

Except India, Doctrine of Radd is not applicable to wife under any circumstances.

11.

Principle “nearer in degree excludes more remote” applicable to only agnatic heirs.

Principle ”nearer in degree excludes remote” applicable to all, without distinction.

12.

No distinction between real and personal property.

Observe such distinction in case of Childless widow who is not allowed to take husband‟s immovable property.

13.

Do not recognize right of elder son getting preference over younger ones.

Recognize right of eldest son up to deceased father‟s sword, wearing apparel and Qur‟an.

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CONCLUSION

The law of succession in India falls within the realm of personal law. Due to this, we have so many different succession laws, each purporting to reflect the diverse and differing aspirations, customs, and mores of the community to which the statute in question applies. The primary source of the Muslim law of succession flows from the Holy Koran. In addition, the 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 pre-Islamic customary law of succession. The divine justness and equitability of the Islamic laws of inheritance have been correctly appreciated by many non-Muslim scholars such as Professor Almaric Rumsey (1825-1899) of King's College, London, the author of many works on the subject of the Muslim law of inheritance and a barrister-at-law, who stated that the Muslim law of inheritance, "comprises beyond question the most refined and elaborate system of rules for the devolution of property that is known to the civilized world.

To understand the Islamic laws of inheritance as a whole it is necessary to consider the system of inheritance that operated within the Arabian Peninsula, prior to the revelation of the Quranic injunctions on inheritance.  Although we do not have the exact details of the system that operated prior to the Quranic revelations we do know that the system of inheritance was confined to the male agnate relatives ("asaba") of the deceased. In this old customary system only the male agnates (asaba) were entitled to inherit.  Amongst the male agnates there were rules of priority, which determined which of the surviving male agnates were entitled to inherit. It is likely that the rules of priority that operate amongst the asaba in Sharia are a carryover of the old customary agnatic system. In Islamic law the son takes

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priority over the father who in turn takes priority over the brothers who in turn take priority over the paternal uncles.  As we shall see the Quran does not expressly state the share of the male agnate relatives as such, although it does enact that the share of the male is twice that of a female. The Sunni jurists take the view that the intention of the Quranic injunctions was not to completely replace the old customary agnatic system entirely but merely to modify it with the objective of improving the position of female relatives. The Sunni Islamic law of inheritance is therefore, an amalgamation of the Quranic law superimposed upon the old customary law to form a complete and cohesive system.

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BIBLIOGRAPHY

Though primary source would be Qur‟an, following books are referred for better understanding 1.

FAMILY LAW By G.C.V. Subba Rao.

2.

PRINCIPLES OF MOHAMMEDAN LAW By Mulla.

3.

MOHAMMEDAN LAW By Tahir Mahmood.

WEBLIOGRAPHY

1.

http://www.iium.edu.my/deed/hadith/muslim/011_smt.html Visited on 26th December, 2013.

2.

http://www.lawyersclubindia.com/articles/-8220-SUCCESSIONUNDER-HANAFI-LAW-8221--424.asp#.UryTq9IW2Xo Visited on 26th December, 2013.

3.

http://www.muslimpersonallaw.co.za/Inheritance%20according%20to% 20Islamic%20Sharia%20Law.pdf  Visited on 26th December, 2013.

4.

http://www.kantakji.com/fiqh/files/mawareeth/4015.pdf  Visited on 23rd December, 2013.

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