MUSLIM LAW

Rules of Inheritance

Sunni
Sunni law identifies 3 types of heirs: Sharers, Residuaries and Distant
Kindred.
The Rules of Exclusion is an important rule in Muslim law which states
the following: the nearer relative excludes the remote one.
This means the son excludes the grandson, father excludes the grandfather.
Also the relative through whom one is related to someone, excludes that
latter person.
For instance, father excludes brothers and sisters.
Sunni only recognises lineal descendants from the son’s line.
Every heir will take a share depending on whether the intestate has
children or other lineal descendant.
In the presence of children or other lineal descendants, husband gets
1/4th.
Otherwise, he gets 1/2.
Wife/wives collectively get 1/8th in the presence of children and lineal
descendants and 1/4th in the absence.
Daughter is a sharer in the absence of a son. She takes 1/2 if there is only
daughter. If there are more than 1, she takes 2/3 collectively.
With the son, she gets in 2:1 ratio.
Father of the intestate gets 1/6th in the presence of children or lineal descendants
and becomes residuary in the absence.
Mother gets 1/6th in the presence of children and lineal descendants and 1/3rd in
their absence.
She gets 1/6th if the testator leaves behind more than one siblings and 1/3rd if he
leaves behind only one.
She gets 1/3rd if the testator leaves behind only a husband/wife and a father.
However, this 1/3rd is given from the portion after deducting the husband/wife’s
share.
A true grandfather is one between whom and the testator there is no
female ancestor. This includes all grandfathers on the father’s side.
He takes 1/6th in the presence of children and other lineal descendants and
becomes a residuary when they are absent. He is excluded by the father.
A true grandmother is one between whom and the testator there is no false
grandfather. For instance, MM, MMM, FM etc. However, Mother’s
Father’s Mother or MFM is not a true grandmother as there is a false
grandfather in between.
She takes 1/6th in all cases. If there are more than 1 grandmother, they
1/6th collectively.
Father excludes paternal grandparents and mother excludes maternal
grandparents.
Son’s daughter and son’s son’s daughters are both sharers in the absence of any
higher daughters.
They get 1/2 if they are the only daughter and 2/3 collectively if they are more
than 1. If a son’s son or son’s son’s son is also left behind, they will get as
residuaries along with them in 2:1 ratio.
If one daughter and a son’s daughter is left behind, the latter gets 1/3rd. This is
only if it is one daughter that is left behind along with a son’s daughter or a son’s
son’s daughter.
In the same way, if one son’s daughter and a son’s son’s daughter is left behind,
she gets 1/3rd.
Uterine brother and uterine sister gets a fixed value of 1/6th. If the
intestate has more than one uterine sibling, they collectively take 1/3rd.
They are excluded by children, lineal descendants, Father and grandfather.
A full sister gets 1/2 the property alone and 2/3rd if they are more than one
sister. She becomes a residuary if there is a brother and takes in 2:1 ratio.
They are excluded by father, grandfather, children and other lineal
descendants. She gets as a residuary when the intestate has left behind
daughters.
Rules of a full sister are applicable to Consanguine sister also.
Only difference being that a consanguine sister is excluded by a full sister
and a full brother. She is a residuary in the presence of a consanguine
brother.
Note that no matter who is alive/dead, a son, son’s son, son’s son’s son
are always residuaries. And because they are residuaries, daughter, son’s
daughter and son’s son’s daughter are also residuaries.
Rules of Inheritance

Shia
Shia considers 3 groups of heirs, viz: Sharers and residuaries.
Amongst them, there are is a sub group
1) Class 1: Parents, children and lineal descendants
2) Class 2: Grandparents, brothers and sisters
3)Class 3: Paternal and maternal aunts and uncles
Each of these classes exclude the one that precedes them.
Rules of exclusion is also applicable here: the near excludes the remoter
relative.
Another important rule is that they adopt the method of Per Stripes. If
there is a pre-deceased son or daughter, the share goes to the branch and
not individually to the heirs of the branch.
The same rule is applicable to grandparents; the share goes as per
branch of the father or mother.
Paternal grandparents share in the ratio of 2:1 and maternal equally.
Cases
 Hafeesa Bibi v Shaikh Farid

Shaikh Dawood died leaving behind 3 sons and 5 daughters.

He died intestate and left behind property divided into Schedules A and B.
Mohd Yakub, his son, contested the suit for partition of property through
intestate succession by claiming that some property had been given to him
as Hiba by Shaikh Dawood.
He alleged that he had taken care of Dawood and thus the Hiba was made
to him. He wanted the property gifted to him to be eliminated from the
intestate succession.
 Defendants disputed this.
They argued that the gift had not been registered or stamped. Unregistered
gift deed could not have passed on any real title to the plaintiff.
Mohd Ali Ghani v Fakhr Jahan Begum was relied upon along with
Mohammedan law to establish the essentials of a valid gift by the court:

(ii) acceptance of the gift, express or implied, by or on behalf of the donee, and (iii) delivery of
possession of the subject of the gift by the donor to the donee
This means that the law does not require a Mohammedan’s gift to be in
writing and thus such a gift need not be registered. This is not one of the
essentials for a valid gift under Muslim law.
Although Section 123 of the Transfer of Property Act lays down the
condition that gifts have to be registered, Section 129 carves out an
exception for the same for Muslims.
The next ground for dispute was Section 17 of the Registration Act
which require deeds to be registered. This was not accepted by the court
as Hiba does not transfer title but merely acts as evidence of transfer.
Even after a Hiba is made, other legal modalities have to be completed
for the Hiba to be valid and active. Thus, Hiba alone does not complete
the transfer.
Khuran Sunnath and Ors v Union of India

This case challenged the unequal distribution of property through

intestate between sons and daughters.
Daughters always inherit half of what the sons inherit.
If only a daughter is left behind, she gets only half the property. The rest
will go to residuaries. This is in sharp contrast to sons who will get the
entire property as residuaries.
Many precedents including John Vallamattom v Union of India, Sarl
Mudgal v Union of India and Mary Roy v State of Kerala were relied on.
The court concluded by saying that modification of personal laws were
beyond the ambit of the judiciary and would like with the legislature.
This is a reiteration of the rule laid down in Maharishi Avadesh v Union
of India.
Therefore, the matter was considered to be one that belonged to the
ambit of the legislature even as the court conceded that inequality
seemed to exist in Muslim law alone vis-a-vis Hindu and Christian.
Khairunissa Begum v Nafeesunisa Begum

The question was with respect to “full sister” and how she inherits if
there is a daughter.
Sister becomes a sharer in the absence of any child of the testator.
Where a daughter or daughters are left, then sister gets as a residuary.