4 aS Wil] Introduction to Muslim Law 176 accordingly built their schemes of inheritance which, a oe Ily different from each other. be seen below, are fundamental and the Sunni laws there are three Classes of hei ‘heirs { cl ay go up or dov * To indicate that the chain of heirs in each Class may £0 ip lo vn to any iti indica a inheritance [like al-Sirajiyah] use Arabic expression as “how high so ever” or “how how low so a To make things simple, we will mention in the exposition of the law here Only tyg a Third fourth or remoter generations surviving a deceased Person is , se it is so, the rules specified for the second Benerationg lower generations as the case may be. Under both the Shia of generations, classics on In generally translated into English generatior rare possibility. If in a rare ca will apply also to higher or Since Sunni Muslims are in a dominant majority, textbooks on Muslim lay, generally deal with the Sunni law of inheritance first, to be followed by Shia law, We will take up the Shia law first — since it is wholly based on the Quran and is definitely much simpler and equitable than the complicated Sunni law which is g complex mixture of the Quranic reform and pre-Quranic custom and usage, 2. Inheritance by Shia Law Classes of heirs There are three Classes of heirs in Shia law — Class I excluding Class II and the latter excluding Class III. In accordance with the Quranic precept that parents and children are one’s preferential heirs, the jurists placed them in Class I. Believing that the Quranic word “auladukum” means descendants [not children only], they provided that in the absence of children lower descendants will step in Class I subject to the rule of nearer in degree excludes the remoter. Next is Class II of heirs which comprises of grandparents [both paternal and maternal] and siblings [brothers and sisters] of the deceased. In the absence of grandparents higher ascendants of the deceased, and in the absence of siblings their descendants, will step in as Class II heirs subject to the rules of nearer in degree excludes the remoter. Finally, there is Class III of heirs which can inherit only in the absence of all Class I and Class II heirs and includes the deceased person’s uncles and aunts [both paternal and maternal] and, failing them, their descendants subject to the rule of nearer excludes the remoter, Surviving spouse ’s per tie dictate of the Quran, the surviving spouse of the deceased, if any, will ae h all the three Classes of heirs, If the deceased was a married male and his ‘as survived him, her share in his estate will be 1/4 if he has not left behindIntestate Succession 177 child or lower descendant ~ ang I/ a - 8 if he has, In either Case, if the deceased has jeft behind more than one wife they fe Will jointly get these shares, If the deceased was a matried fema share in her estate will be 1/2 if he has and 1/4 if he has. Class I Heirs Among Class I heirs three different Situation ar i (i) parents of the deceased surviving with his or her descendants, (ii ig the survivors, and (iii) descendants only with no parent ong the survivors, The sharing of estate in these cases will be as follows. Parents with descendants (a) mother : 1/6; father: 1/6 (b) daughters only : 1/2 for One and 2/3 for two or more (c) sons & daughters : to inherit together, males taking double shares to inherit in equal shares (e) grandchildren [if no chil males (d)_ sons only : Id]: to inherit Per stirpes, double shares for Parents alone (a) if the deceased has left behind no, or only one, and the rest for father sibling : mother V3 (b) if the deceased has le! ft behind two or more siblings ; father the rest [since mother 1/6; he has to maintain the siblings] [The traditional rule that in such a case there should be t brother and two or more sisters, WO OF more brothers, or a or four or more sisters, is no more followed]. (c) one parent only : whole estate Descendants alone (a) daughters only: 1/2 for one; 2/3 for two or more (b) daughters and Sons : to inherit together, sons taking double shares (c) sons only: to inherit in equal shares (4) grandchildren shares Se [if no child}: to inherit Per stirpes, males taking double178 Introduction to Muslim Law Share adjustment If in this Class there are only fractional-share holders, their total may leave eve a or deficit. If there is a residue it will be distributed among all PrO rata "Side there is an arithmetical technique called au/ — increase — [see below ies wi ich law]. If there is a deficit it will be deducted from the daughters? shares, 7 Sunn Class I Heirs Among Class II heirs also three situations are possible—(i) grandp deceased surviving with his or her siblings, (ii) grandparents alone an and (iii) only siblings and no grandparents. The sharing of estate in Situations will be as follows: arents of dno sity le these yar ling tion, Grandparents with siblings (a) all to inherit together; among siblings full blood excludin: i half b} but neither of them to exclude uterine blood Sod (b) on paternal side grandfather to take a brother’s and grandr UPA mother a sister’s share (c) on maternal side grandfather to take a uterine brothe ae T'S and grandmother a uterine sister’s share Grandparents alone (d) paternal side 2/3 [to be divided in the ratio of 2:1]; maternal side 1/3 [to be divided equally] (e) single grandparent [paternal or maternal] : whole estate (f) failing grandparents : great-grandparents to step in, the nearer excluding remoter, taking as per the rules mentioned above (g) as in situation (e) below Siblings alone (a) sisters only: 1/2 for one and 2/3 for two or more (b) sisters & brothers: whole estate, males taking a double share (c) brothers alone : whole estate in equal shares (d) uterine brother/sister : 1/6 for one; 1/3 for two or more (e) failing siblings: their descendants to step in : nearer excluding the remoter, distribution per stirpes, and males taking a double sharesImestate Success ion 179 share adjustment fin this Class there are only fractional-share holde: of deficit. If there is a residue the technique mei fi te applied to decrease the shares pro nt from the sisters” shares, » their total may leave a residue : oned above under Class I will ‘ata. If there is a deficit, it will be deducted j Class II Heirs Uncles & aunts "Uncles and aunts of the deceased will inherit hi rules: herit his or her property as per the following full blood to exch f i (a) nme exclude half blood but neither of them to exclude uterine (b) paternal and maternal sides together : paternal 2/3, males taking double shares; maternal 1/3 divided in equal shares : (c) paternal or maternal side only: estate to be divided as above: (d)_ single claimant on each side: paternal 2/3; maternal 1/3 (e) one claimant only : whole estate (f) uterine uncles & aunts : 1/6 for one; 1/3 for two or more Uncles & aunts’ descendants In the absence of uncles and aunts of the deceased, their descendants will inherit as per the following rules: (a) all descendants of uncles and aunts to step in their respective places — nearer excluding the remoter, distribution to be per stirpes, males taking double shares (b) full blood to exclude half blood but neither to exclude uterine blood. Exception between a half-blood uncle and a full-blood uncle’s son [they the latter will exclude the former. This is a history-based the superiority of Ali [Prophet's full Prophet’s uncle by half blood] On the paternal side, being the only claimants] exception to accommodate the Shia belief in Patemal uncle Abu Talib’s son] over Abbas [180 Introduction to Muslim Law 3. Inheritance by Sunni Law Three classes of heirs There are three Classes of heirs — Classes I and II inheriting together an Class TIL. Class I includes ascendants and descendants mentioned in the their fractional shares. Class II comprises of agnates [related to the ¢ males] other than those included in Class I. Class TIT includes al] eXClug, decen ean wie Ceaseq ith CORNates In meh ri to the deceased through females]. elt Traditionally, these Classes are referred to as caw-il-faraez [Quran sharers], asabat [resuduaries or agnatic heirs}, and zaw-il-arham Idistay its op or uterine heirs]. Avoiding these terms we will refer to them as heirs of Gy Ndreg Tl and IL. lasses Classification of grandparents Unlike in Shia law which places all grandparents on paternal and Maternal gi in their absence higher ascendants] in Class II, under Sunni law some of a es for place in Class I or II and the rest in Class III. Traditionally, the form, ™ to as jadd-e-sahih and the latter as jadd-e-fasid - which expressions into English as “true” and “false” grandparents. Avoiding these rath expressions we will explain the position in a different way. nate Tefetreg are translateg er Unpalatable Surviving spouse The surviving spouse of the deceased, if any, will inherit with all the th of heirs. If the deceased was a married male and his wife has surviveg him share in his estate will be 1/4 if he has not left behind a child or lower deiben [only in the male line of descent so as to include son’s but not daughter’s child int —and 1/8 if he has. In either case, if the deceased has left behind more than ren] wife they will jointly get these shares. one TEE Classes If the deceased was a married female and her husband has survived her, his share in her estate will be 1/2 if she has not left behind a child or lower descendant [in the male line of descent only ] - and 1/4 if she has. Classes I & Il Ascendants with descendants Among the ascendants and descendants of the deceased included in Clauses I and II three situations may be possible — (i) ascendants and descendants both being among the survivors (ii) ascendants alone surviving the deceased, and (iii) descendantsIntestate Succession 181 among the survivors. The . sharin i on ng of estate in these Various situations will rents a hildren [or lower Parents and cl lower descendants] of ie the deceased will inherit follows. It must be remembered that, unlike in Shia law, the term “lower scone ra > ndants” . ly the agnates an ere includes only mong them [relate mi de son’s children but not daughter’s). f fatal rit i a follows. (a) mother 1/6; father 1/6 (b) father’s parents: his father [if father is she . parents are dead] 1/6 her is dead] 1/6; his mother [if both (c) mother’s mother [if mother is dead and even if father is alive]: 1/6 (@) daughters only : 1/2 for one; 2/3 for two or more (e) sons & daughters: to inherit together, males taking double shares (f) sons only : to inherit in equal shares (g) predeceased son’s children [in the absence of any son or daughter]: (i) son’s daughters alone: 1/2 for one, 2/3 for two or more; (ii) son’s sons and son’s daughters: to inherit together, males taking double shares; (iii) son’s sons alone: to inherit in equal shares — [exception: if there is only one daughter and no son or son’s son daughter will get 1/2 and son’s daughters 1/6] Ascendants alone (a) if the deceased has left behind two or more siblings : mother 1/6; father the rest [since he has to maintain them] (b) if the deceased has left behind no, or only one, sibling : mother 1/3; father the rest (c) only mother [no father]: 1/3 (d) only father [no mother]: whole estate Descendants alone (e) daughters only: 1/2 for one; 2/3 for two or more (f) daughter and sons: to inherit together, sons taking double sharesWee Introduction to Muslim Law (g) sons only: to inherit in equal shares (h) predeceased son’s children [in the absence of any child] (i) son’s daughters alone: 1/2 for one, 2/3 for two or more (ii) son’s daughter and sons: to inherit together, males taking double shares (iii) son’s sons alone: to inherit in equal shares Brothers and sisters If the deceased is not survived by father [or paternal grandfather], son and d, {or children of a predeceased son], his or her brothers and sisters wil| inl per the following rules: ‘Qughter herit ag (i) full blood to exclude half blood, but neither to exclude uterine blood (ii) full or half sisters alone [no such brothers] : 1/2 for one; 2/3 for two or more — [exception: if there is only one full sister with Consanguine sisters, full sister will get 1/2 and consanguine sisters 1/6] (iii) full or half sisters and brothers: to inherit together, males taking , double shares (iv) full or half brothers only [no sister] : equal shares (v) uterine brother/sister : 1/6 for one; 1/3 for two or more Remote agnates In the absence of the father [or his father], and full or half brothers and sisters of the deceased, the residue of the estate [minus the shares of Class I heirs, if any], goes in this order to the following relatives of the deceased: (a) nephews [brother’s sons] (b) paternal uncles [father’s brothers] (c) granduncles [father’s uncles] In all such cases full blood excludes half blood, and uterine blood is not included. Share adjustment If there are only Class I heirs with their fractional shares [and no Class II heirs to take the residue], their total may leave a residue or deficit. In such cases both theIntestate Succession 183 asidue or the deficit is to be shared by retigue for this under which all. fractional shares are ad denominator which is then Teplaced With the sum of new numerators. In case of residue this formula is called au/ increase] and in case of deficit radd [decrease] Illustration: — If the allotted shares are 1/2, 1/2 and 1/6, their common denominator will be 6 and the Corresponding numerators 3, 3 and 1. The total of these numerators [7] will be adopted as the new denominator and shares will pecome 3/7, 3/7 and 1/7. Y all heirs pro rata, There is an arithmetical lapted to a common Class III Heirs In the remote possibility of the deceased not b and I [except the surviving spouse, if any. share of the spouse will go to Class III eing survived by any heir of Classes I ] the estate minus the prescribed fractional heirs. Daughter 5 descendants On the top in Class III are children of daughters [ Class f or of a son’s daughter] of the deceased who inherit as per the following tules; (i) the nearer in degree of relationship will exclude the remoter; (ii) if there is a single claimant [male or fe l male] the whole estate will go to him or her; (iii) if there are both males and females amon ig them, the rule of double share for the male will apply; (iv) in the next generation [daughter or son’s daughter’s children], children of heirs of Classes I and II will exclude those of Class III heirs — so son’s daughter’s children will exclude daughter’s son’s children Maternal grandfather If the deceased has not left behind any daughter’s child [or son’s daughter’s child] the estate minus the surviving spouse’s share will go to the mother’s father [maternal grandfather] of the deceased. Brother's daughters & sister's children While nephews [brother’s sons] of the deceased find a place in Class II, nieces [brother's daughters] are placed in Class III and inherit, along with his or her sister’s sons and daughters, next to his or her daughter’s [or son’s daughter’s ] children. In the absence of all of them their children may inherit, nearer excluding the Temoter, and males taking double shares.a 184 Introduction to Muslim Law Female cousins While paternal uncle’s sons find a place in Class II, his daughters are Class III and may inherit next to all other Class IIT heirs mentioned above ‘ced in them, their descendants will inherit — nearer excluding the remoter and males ling double shares. aking Paternal aunts Next to female cousins and their descendants the estate may go to paternal the deceased and, failing them, to their descendants — nearer excluding the and males taking double shares. Aunts of TeMoter Maternal uncles & aunts Failing all the heirs mentioned above, the estate will pass on to the deceaseq Person maternal uncles and aunts and, failing them, to their descendants as Per the rule Ki nearer excludes the remoter. Two schemes For determining the eligibility and shares of Class III heirs there are two different schemes ascribed to the two disciples of Imam Abu Hanifa [founder of the Hana, school of Sunni Muslim law] — Abu Yusuf and Shaibani — the former taking into account the gender and kind of blood only of the actual claimants only, and the latter the same at each of the links through which a claimant is related to the deceased, The former is much simple and yet the latter is followed in the subcontinent, Compared with Shia law Due to tremendous difference between the Shia and the Sunni laws of inheritance explained above, in the same case situations their application may produce Conflicting results — sometimes exactly opposite of each other — as illustrated below. (a) A man is survived by his widow, paternal uncle, and brother's daughter. Under Sunni law the widow will get 1/4, the uncle 3/4 and the niece nothing. By the Shia law the widow will get 1/4, the niece 3/4 and the uncle nothing. (b) A woman is survived by her mother, daughter, and brother. Under Sunni law the mother will get 1/6, the daughter 1/3, and the brother the rest of estate. By the Shia law the mother will get 1/6, the daughter 1/3 and the brother nothing [residue to be given to mother and daughter pro rata]Intestate Suc cession / an is survived by hi () A ro ee by his paternal grandmother, brother, and ‘ave . in Mee ler Sunni law the granny will get 1/6, brother ‘ oa ie Bhar son nothing. By the Shia law the daughter’s son will ge ole estate, excluding the granny and the brother. (d) A woman ts survived by her husband, two daughters and a sister Under Sunni law the husband will get 1/4, iwo daughters to eth? 2/3 and the balance will go to the sister, By the Shia law the hsb will get 14, the daughters rest of the estate, and the sister nothing @ A woman is survived by her sister and paternal uncle’s son. Under Sunni law the sister will get 1/2 and the cousin the rest of the estate. By Shia law the sister will inherit the whole estate excluding the cousin. i (f) A man is survived by his maternal grandfather and paternal uncle’s son. Under Sunni law the whole estate will go to the cousin, and by Shia law to the maternal grandfather, . (g) A man is survived by two sons of a predeceased son (Y) and one son of another such son (Z). Under Sunni law all three will get 1/3 each. By the Shia law Y’s two sons will get 1/4 each and Z’s only son 1/2. (h) A woman is survived by her husband, mother and father. Under Sunni law the husband will get 1/2, the mother 1/6 and the father rest of the estate. By Shia law the husband will get 1/2 the mother 1/3 and the father the rest of the estate. (i) A man is survived by her mother, father, and daughter’s daughter. Under Sunni law the mother will get 1/3, the father the rest of the estate, and daughter’s daughter nothing. By Shia law the mother will get 1/6, the father 1/6 and the daughter’s daughter rest of the estate. Administration of estate The old treatises on Muslim law include the following rules relating to administration of deceased persons’ estates which were developed by the jurists of various schools of Muslim law. The basic rules are that: (a) funeral expenses for the deceased are to be paid from his property on priority, if so demanded by his survivors; (b) bequests made by the deceased to the extent they are valid under the law applicable [see Chapter 8, supra] are to be enforced next; 185= 186 Introduction to Muslim Law (c) the remainder is to be distributed among the heirs of the dece, . ‘ased eligible to inherit as per the law applicable; (d)_ in the remote possibility of there being no heir of any Class Lincluding a spouse], the rule of escheat will apply. These rules were aptly explained by the legendary judge Syed Mahmood of th Allahabad High Court in an old case and his exposition of the subject was iss affirmed by the Privy Council. — Jafri Begum v Amir Muhammad Khan (1885) 5 All 822; Kazim Ali Khan v Sadiq Ali Khan (1938) 65 1A 219. Creditors’ rights The liability of heirs of the deceased and the rights of his creditors against them were elucidated by the Privy Council, and after independence, by the Supreme Court — Jan Mohd. v Karam Chand AIR 1947 PC 99; Vechil v Pohumma AIR 1991 SC 720. Individual ownership As the shares of all lawful heirs in the property of the deceased get vested in them at the moment of his or her death, any one of them cannot transfer the share of another heir not even as de facto guardian of a minor heir. — Mohammad Sulaiman v NL Mohammad Ismail AIR 1966 SC 792; Amar Ahmad Khan v Shahnim Ahmad Khan AIR 2012 Shar 4. 4. Related Legislation in India Caste Disabilities Removal Act During the British rule in India, with a view to promoting conversion to Christianity a Regulation was issued in the Bengal Presidency saying that the rules of Hindu and Muslim laws which disqualify a person changing his or her religion from inheriting their deceased relatives’ property “shall not be permitted to operate.” [Bengal Regulation VII of 1909, Section 2]. After the establishment of a central legislature for British India this Section of the Regulation was incorporated, in general terms, into a brief Act titled as Freedom of Religion Act 1850. It was renamed in 1897 as the Caste Disabilities Removal Act and, after independence, was subjected to necessary adaptation. Since then it reads as follows: 1, Law or usage which inflicts forfeiture of, or affects, rights on change of religion or loss of caste to cease to be enforced— So much of any law or usage now in force within India as inflicts on any person forfeiture of rights or property, or may be held in any way to impair or affect any right of inheritance, by reason of his