Muslim Law of

Inheritance

Dr. Mamta Rana

 General Principles
1. Customary Principles of Succession
2. Islamic Principles of Succession
Customary Principles of Succession
! The nearest male agnate or agnates
succeeded to the entire estate of the
deceased
! Females and cognates were excluded
! Descendants were preferred to ascendants
and ascendants to collaterals
! When the agnates were equally distant to the
deceased , the estate was divided per capita
 Islamic Principles of Succession
! The husband or wife
! The females as well as cognates
! Parents and ascendants are given a right to
inherit even when there are male descendants
! As a general rule , the share of female is one
half of the corresponding male relation’s share
 What is Heritable Property
! Payment of certain charges and after deducting the
following what is left by a Muslim on his death , is
his heritable property
! Funeral expenses
! Expenses of obtaining Probate and Letters of
Administration from the Court
! Wages for personal service to the deceased within
three months of his death
! Debts
! Legacies – subject to the limits of the testamentary
powers
 When Inheritance Opens
! The inheritance , for the first time , opens on
the death of the person. Before his death
nobody can claim any right in the property on
the basis of his being heir – apparent on heir
presumptive. A right by birth is unknown to
Muslim Law
 Applicability of Certain Rules
! Rule of Representation
! Rule of Exclusion
! Rule of Primogeniture
! Rule of Vested Inheritance
! Rule of Spes Successionis
 Rule of Representation
! The principles of representation has more
than one meaning . It may be applied for the
purpose of deciding
a) what persons are entitled to inherit

b) the quantum or the share of any given

person on the footing that he is entitled to
inherit
 Rule of Exclusion
! Homicide
! Illegitimacy
! Slavery
! Difference of religion
! Child in the womb
! Insanity and unchastity
! Difference of country or allegiance( not applicable in
India)
! Estoppel in succession
! Doctrine of exclusion
! Exclusion of daughters from the right of inheritance
 Rule of Primogeniture
! Where a person has several sons , the eldest
son has a preferential claim over the estate
of the deceased father. Shias , however
recognize the exclusive right to the eldest son
of such articles of the father as his wearing
apparel , Quran ring , sword , arms , the
mantle and horse
 Rule of Vested Inheritance
! The moment a person takes his last breath ,
his property vests in his heirs though the
actual distribution according to the shares of
each heir may take place after sometimes.
Two stages of succession
a) Vesting of inheritance

b) Distribution of inheritance
 Rule of ‘Spes Successionis’
! Nobody can claim any right in the property on
the basis of being the heir apparent . Hence
during the life time of a person all that an heir
apparent has is a mere chance of inheriting
i.e., spes successionis ( hope of succession)
! Nemo est heres verentis-heir apparent or
presumptive heir has no such reversionary
interest as would enable him to object to any
sale or gift made by the owner in possession
 Heirs under Hanafi Law(Sunni)
! The heritable property first goes to the relations of the
deceased who on the basis of their preferential claim have
been divided into the following three groups:
a) Sharers (Quaranic heirs)- They are the relations whose share
have been specifically fixed by Quaran.
b) Residuaries (Agnatic heirs) –Who succeed to the residue, if
any, left after satisfying the sharers.
c) Distant Kindred ( Uterine heirs)-They are those relations
who are neither sharers nor residuaries; they are related to
the propositus through blood
d) Subsidiary or Unrelated heirs , which comes after these
three groups, inherit only in exceptional cases. For e.g.
Successor by special contract ,acknowledged kinsman,
universal legatee ( the State )
 Quaranic Heirs
! They are 12 in number, majority being females. The
male sharers are husband , father , true grand
father (how high so ever) and, uterine brother. The
female sharers are wife, mother , true
grandmother(how high so ever), daughter, son's
daughter(how low so ever), uterine sister, full sister
and consanguine sister. Son is not a Quaranic heir.
! The most favored are father, mother, son(though a
residuary),daughter, husband and wife
 Residuaries
! They are all male agnates( descendants,
ascendants and collaterals-inherit through
male relations) and only four females who are
“sharers” but are converted into residuaries in
some cases( daughter, son's daughter, full
sister, and consanguine sister)
 Distant Kindred
! This class covers blood relations who are
neither sharers nor residuaries. Thus,
daughter’s children, children of son’s daughter,
Full brother's daughters, full paternal and
maternal aunts,etc
 Heirs under Shia Law
! Heirs by consanguinity
! Heirs by special case
 Heirs by consanguinity
! Group I
a) Parents
b) Children and other lineal descendants how low so
ever
➢ Group II

a) Grand parents, how high so ever ( true or false)

b) Brothers and sisters and their descendants, how low
so ever
➢ Group III

a) Paternal uncles and aunts(how high so ever)

b) Maternal uncles and aunts(how high so ever)
 Inheritance : Sunni Law
! 1. SHARE OF HUSBAND
! IF NO ENTITLED DESCENDANTS EXIST (ie); Children/Grandchildren)
! THEN
! HUSBAND = 1/2
! IF ENTITLED DESCENDANTS EXIST (ie); Children/Grandchildren)
! THEN
! HUSBAND = 1/4
! Note: ENTITLED DESCENDANTS = Sons, Daughters, Son’s Son, Son’s Daughter. Daughter’s children are NOT entitled.
! 2. SHARE OF WIFE
! IF NO ENTITLED DESCENDANTS EXIST (ie); Children/Grandchildren)
! THEN
! WIFE = 1/4
! IF ENTITLED DESCENDANTS EXIST (ie); Children/Grandchildren)
! THEN
! WIFE = 1/8
! Note: ENTITLED DESCENDANTS = Sons, Daughters, Son’s Son, Son’s Daughter. Daughter’s children are NOT entitled.
! 3. SHARE OF DAUGHTER’(s)
! IF ONLY ONE DAUGHTER (and NO Sons)
! THEN
! DAUGHTER = 1/2
! IF TWO OR MORE DAUGHTERS ONLY (and NO Sons)
! THEN
! DAUGHTERS = 2/3
! (to be shared equally between all of them)
! IF both SON’s & DAUGHTERS EXIST,
! THEN Son: Daughter 2:1
Cont.…
➢ 4.SHARE OF FATHER
! IF ENTITLED DESCENDANTS EXIST (Sons, Daughters, Son’s Sons, Son’s Daughters)
! THEN
! FATHER = 1/6
! IF NO MALE DESCENDANTS EXIST (Sons, Son’s Sons)
! THEN
! FATHER = 1/6 plus Residue
! (residue = remainder after all legal shares are distributed)
! IF NO ENTITLED DESCENDANTS EXIST
! THEN
! FATHER = Residue
! 5. SHARE OF MOTHER
! IF ENTITLED DESCENDANTS or BROTHERS/SISTERS EXIST
! THEN
! MOTHER = 1/6
! IF NO ENTITLED DESCENDANTS EXIST
! THEN
! IF NO BROTHERS/SISTERS, NO FATHER, NO SPOUSE EXIST
! THEN
! MOTHER = 1/3
! IF BROTHERS/SISTERS, FATHER, or SPOUSE EXIST
! THEN
! MOTHER = 1/3 of Residue
Inheritance : Shia Law
! Husband : he gets ¼ when only one heir is present(lineal
descendant), he gets ½ in absence of a descendant
! Wife: she gets 1/8 when one or more heirs are present, she gets ¼ in
absence of descendant
! Father: 1/6 in the presence of lineal descendant, in absence he
inherits as a residuary
! Mother: 1/6 in presence of lineal descendant or in presence of two or
more full/consanguine brothers , or one such brother and two such
sisters or four such sisters with the father, otherwise her share is 1/3
! Daughter: ½ when only one heir is present and 2/3 when two or more
heirs are present(in absence of son), with the son she takes as a
residuary
Rules relating to Lineal Descendants
! Lineal descendants inherit subject to the rule
of exclusion
! Where the heirs are the descendants of two
or more children but are in the same degree
of the relationship to the deceased, for the
purposes of calculating their shares, the rule
of representation is applicable
! Succession among the lineal descendants is
per stirpes and not per capita
Doctrine of Return(Radd)
! If after distributing the property among the sharers there is a residue
but there are no residuaries, the doctrine of return is applied and
accordingly the residue reverts to the sharers in proportion to their
shares. The residue in presence of the sharers does not pass to the
distant kindred.
! Under Sunni law, the return is subject to the following rules:
! The surviving spouse(husband or wife) is not entitled to any return if
any other heir is present(sharer or even distant kindred)
! If only the husband and a distant kindred are present e.g. son of a
predeceased daughter, then the husband will take half (as a sharer) as
there is no child or child of a son, and the remaining half will go to
the distant kindred
! If no heir is present and deceased dies leaving behind only a widow,
she would take ¼ of the property as a sharer and ¾ as return
Contd…
! Under Shia law, the doctrine of return is subject to the following rules:
! The surviving spouse is not entitled to any return if any other heir is present.
Presently, the husband and also his wife can claim the return when no other
sharer is present. Thus, where a shia female dies and the only heir present is
her husband, he takes ½ as a sharer and the remaining half goes return.
Similarly, where the surviving spouse is a widow, she is entitled to ¼ share
as also to the rest of the property via return
! Mother of the deceased cannot claim the return in presence of the father,
daughter and:(a)two or more full/consanguine brothers or(b) one such
brother and two such sisters; or (c) four such sisters. In such cases, the
surplus is taken by the father and the daughter in proportion to their shares.
! In the presence of the full sister the uterine brother/sister cannot take the
surplus by return.
Doctrine of Increase(Aul)
! This doctrine is applied if the sum total of the shares exceeds
unity. Then there is consequent proportional deduction of
shares by increasing the denominator of the sum total of the
shares of all the heirs. This is the position under Sunni law.
! Shia do not recognize the doctrine of increase. Here, if the sum
total exceeds the unity the excess share is deducted from the
share of the daughter or full/consanguine sisters.