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 Introduction
Inheritance is one of the modes of acquiring property. The law prescribes the
procedure for the devolution of property amongst the heirs. In pre-Islamic
Arabia, the customary rules governed the practice of Inheritance, which was
based on the principle of comradeship in arms. This customary practice used
to exclude females and minors and instead favoured parental male descent,
adoption and sworn alliance or clientage. After the dawn of Islam, this
discriminatory customary practice of pagan Arabs was reformed. This
marked a significant departure from the previous systems. Females for the
first time in history were recognized as competent to inherit. Besides them
widow, widower, parents and ascendants were given the right to inherit in
presence of male agnatic descendants.

General Principles Governing Inheritance

According to Islamic Law of Inheritance, before an estate devolves amongst
the heirs, certain fundamental requirements are to be complied with:
a) Funeral expenses of the deceased are to be taken care of.
b) Debts, if any, of the deceased are to be paid
c) Bequests, if any, made by the deceased are to be enforced.
After fulfilling all outstanding liabilities as stated above, the remaining part
of the property is distributed amongst the legal heirs. In pre-Islamic Arabia,
a man had an unqualified power of disposing of his property by will. Islam
gradually reformed the system by laying down specific rules of distribution

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of property. The right of will was recognized but qualified. A Muslim was
allowed to make a will subject to the following qualifications:
a) A will cannot be made in favour of a would be heir;
b) It cannot exceed more than one-third of the total property.
Incase, a will is made in favour of a would be heir, or if it exceeds, more
than one- third, the consent of future heirs becomes necessary.
Amongst Shia’s, the rule is somewhat different and a testator can make a
will in favour of a legal heir so long it does not exceed one- third of his total
estate. Such a legacy is valid without the consent of the other heirs, but
where it exceeds one- third it is not valid without the consent of all the heirs.
Such consent may be given either before or after the death of testator. Under
Sunni law ratification must always be after the death, an assent before death
being of no effect.

Competence to Inherit
Every heir is entitled to inherit. The distribution is effected amongst the
blood relations and marital relations. The claimants must establish the cause
of inheritance and there should be no impediment to inheritance, which is
based upon near relationship, and there should be no impediment to
inheritance e.g., the existence of a preferable heir or otherwise.
Rule of Exclusion
There are two kinds of exclusion viz; perfect or absolute exclusion and
imperfect or partial exclusion.
Perfect or Absolute Exclusion
There are two classes of heirs, one amongst them is not excluded at all and
the other class is such that under certain circumstances they inherit and
under certain circumstances they are excluded. The heirs which are not

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excluded at all are six in number: Father, Mother, Widow, Widower,
daughter and Son. These are called primary heirs. All the other heirs, each of
whom may be excluded by some one else. For example brother is an heir he
may be excluded by the son or by the father. Brother can inherit only if the
deceased has left no son or father.
Illustrations
I) ‘A’ dies leaving behind: father, daughter, widow and brother. Brother
cannot inherit. Father excludes brother.
II) ‘A’ dies leaving behind: daughter, widow and brother. Brother along
with daughter and widow is entitled to inherit.
III) ‘A” dies leaving behind: Widow, Son and brother. Brother cannot
inherit. Son excludes brother.
This rule is based on the principle that nearer excludes the more remote. The
perfect exclusion also applies to the cases where although a person is related
to the deceased and is otherwise entitled to inherit, there is some legal cause,
which excludes him from inheriting his share in the property. Examples are:
difference of religion, Homicide, illegitimacy, slavery.
Difference of Religion
Under Islamic Law a non-Muslim is not entitled to inherit from a Muslim. If
a Muslim by birth becomes an apostate he cannot inherit. In India, the caste
Disabilities Removal Act, 1850 has removed this impediment and apostasy
as such does not affect the right of inheritance.
Homicide
A claimant who causes death intentionally or unintentionally is not entitled
to inherit from the deceased under Hanafi Law. Homicide bars the murderer
absolutely from inheriting any property of the murdered irrespective of the

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close relationship between the two. Under Shia Law only intentional killing
is a bar to inheritance.
Illegitimacy
An illegitimate child cannot inherit property from a father’s side but can
inherit from mother’s side only. Under Shia law an illegitimate child can
neither inherit from the father nor from the mother.
Slavery
Previously slaves were not entitled to inherit. However, this rule has become
almost obsolete since the practice of slavery itself by and large stands
extinguished.
Imperfect or Partial Exclusion
Imperfect or partial exclusion is an exclusion from one share and an
admission to another. For Example a daughter is a Quranic heir, but by the
co-existence of a son, she may be excluded as a Quranic heir and admitted as
residuary.
Illustration
I) ’A’ dies leaving behind widow, father, son and daughter. Widow and father
will take their respective shares as Quranic heirs. Daughter who is a Quranic
heir will be excluded as a Quranic heir by the co-existence of son and will be
admitted as an Agnatic heir.
II) ‘A’ dies leaving behind mother, widow, brother and sister. Mother and
widow will take their respective shares as Quranic heirs. Sister who is a
Quranic heir will be excluded as a Quranic heir by the co-existence of
brother and will be admitted as an Agnatic heir.

Females as Heirs

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The women in pre-Islamic Arabia were not entitled to inherit and the reason
for their exclusion was that they were treated as second-class citizens,
because they did not used to take part in war. Islam recognized their right of
inheritance and under Islamic law they inherit in different capacities. She
inherits as Mother, widow, daughter, sister, granddaughter, grandmother,
aunt and female collaterals.
Doctrine of Representation
The doctrine of representation, which is not recognized in India, means that
a person cannot succeed as a representative of someone who has already
predeceased the deceased. For Example ‘A’ dies leaving behind son ‘B’ and
predeceased son’s son ‘C’. Only the Son ‘B’ will inherit. ‘C’ being the son of
predeceased son cannot represent his father and, therefore, is excluded from
inheritance. The heir is to be ascertained at the time of the death of the
deceased, and a person can’t succeed as representative of someone who had
already predeceased the deceased.
Nature of Property
Islamic law of inheritance makes no distinction between movable or
immovable property, joint or separate property, realty or personality.
The Heirs in General
According to Hanafi law jurists, there are three principal classes of heirs and
four classes of subsidiary heirs.
Principal Classes
A number of relations of the deceased are entitled to inherit. The principal
classes include Quranic heirs (Sharers); Agnatic heirs (residuaries); Uterine
heirs (Distant kindred).
Quranic Heirs (Sharers)

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The Quranic heirs constitute class I heirs and are twelve in number. They are
also called as sharers. The Quran has fixed their respective shares. They take
their respective share in certain order of preference. Quranic heirs include:
Widow, widower, Father, Father’s father, mother, grandmother (mother’s
mother, father’s mother), daughter, son’s daughter; full sister; consanguine
sister, uterine brother and uterine sister. Five Quranic heirs always inherit.
They include: widow, widower, father, mother and daughter. Others may or
may not inherit and their right of inheritance is determined by the presence
or absence of heirs who are primary heirs especially father and son.
Agnatic Heirs (Residuaries)
Agnatic heirs constitute Class II heirs and by relationship are three:
1) Agnates in their own rights
2) Agnates in another’s rights
3) Agnates together with another
Uterine Heir’s (Distant Kindred)
The third principal class consists of uterine heirs or distant kindred. Distant
kindred are of four kinds:
1) Descendants of the deceased;
2) His ascendants;
3) Descendants of his parents
4) Descendants of his paternal and maternal grandfathers and
grandmothers
Subsidiary Heirs
In case none of the heirs mentioned above exist, the property of the deceased
will devolve to the subsidiary heirs amongst whom each class excludes the
next.
Succession by Contract

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Succession by contract arises on the basis of relationship technically called
wala. Literally wala means friendship and assistance but legally it signifies
that assistance which entitles a person to inherit from the deceased. Basically
it is a fictitious relationship, which arises in two situations: by emancipation
and by friendship. If a master emancipates his slave, the master can inherit
from the slave but not vice-versa. The second by clientage, which implies a
responsibility, to pay fine to which the deceased may be liable and in
consideration, thereof, the deceased has made a declaration that he shall
inherit from him. This rule has little applicability in India’s the consideration
cannot be recognized.
Heir by Acknowledgment
In order of preference, next comes the heir by acknowledgment. The
acknowledged kinsman is a person of unknown descent who has been
acknowledged by the deceased not through himself but by another. This
acknowledged kinsman-ship does not extend to a son. For example, if two
persons of unknown parentage call themselves brothers, and one of them
dies without any known legal heir, the other person would be entitled to
inherit deceased’s property. If a will exceeding one third has been made by
the acknowledgor, the acknowlegee’s consent is necessary to validate it.
Universal Legatee
In absence of everyone as stated above, a person is free to make a will and
bequeath his entire estate to any person, known as universal legatee. In
absence of legal heirs, the testators power of bequeathing only one third of
the estate is not qualified.
Escheat
In absence of all the heirs mentioned above the estate devolves upon the
Bait-ul-mal, the public treasury in an Islamic country. In India it would

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escheat to the state. Under the Shia law, there is no escheat to Bait-ul-mal,
and the property is preferred to be liquidated amongst the poor.
Doctrine of ‘Awl’ or Increase
Sometimes it is found that the sum total of fractional shares to which some
sharers are entitled is more than unity. In such a situation a proportionate
abatement is made in all the shares by increasing the common divisor. By
awl the fractional shares are proportionately reduced. The following
illustration will explain the doctrine of awl:
‘A’ dies leaving behind widow, mother and a sister. The heirs are entitled to
the following shares:
Widow= ¼ =3/12 by awl reduced to 3/13
Mother=1/3 =4/12 by awl reduced to4/13
Sister=1/2=6/12 by awl reduced to 6/13
Which is=13/12 by this doctrine it is =13/13=1
Doctrine of Radd or Return
When the sum total of fractions is less than unity and there are no residuaries
to take the residue, the residue returns to the Quranic heirs (except in case of
widow or widower) in proportion to their respective shares. This is called
radd or return. The sharers who are entitled to return are seven females;
mother, grandmother, daughter, son’s daughter, full sister, consanguine
sister, uterine sister and only one male i.e., uterine brother.
In India when the deceased leaves no other surviving heir except a spouse,
the surviving spouse takes by return. The following illustrations may
elucidate the doctrine of radd:
1. ‘A’ dies leaving behind Widow and a sister:
Widow =1/4
Sister =1/2 by return =3/4 (1/2 as sharer and 1/4 by return)

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2. ’A’ dies leaving behind mother, daughter and uterine sister:
Mother =1/6 =1/6 increased to 1/5
Daughter =1/2 =3/6 increased to 3/5
Uterine sister =1/6 =1/6 increased to 1/5
Which is =5/6 by this doctrine it is = 5/5 =1

Conclusion
Islam reformed the early customary rules of inheritance; however it did not
abandon all customary practices. The Islamic law of inheritance rests
basically upon the recognition of two distinct categories of legal heirs-the
male agnates or asaba, the heirs of the tribal customary law and the new
Quranic heirs. This system of inheritance eliminated traditionally eligible
categories and included new classes of heirs. A good number of heirs were
accorded certain rights, which sometimes resulted in the division of the
property into smaller shares. The Islamic law of inheritance may be
summarized as under:
1 The widower and widow were made an heir.
2 Females and cognates were recognized as competent to inherit.
3 Parents and ascendants were given a right to inherit in presence of male
agnatic descendants.
4 No will can be made in favour of any of heirs.
5 Bequest to a stranger is allowed only to the extent of one-third of the
estate.
6 An exception to the limit of one-third and in favour of would be heir
operates if the would be heirs approve.
7 Adoption was excluded from the ambit of inheritance.
8 Rights of inheritance arise only on the death of a certain person.

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9 Generally the share of the female is half of the share of her male
counterpart.

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