Muslim Law of Shares

Shares Doctrinne of Rad And AUL

• General principles
• No concept of joint family
• Exclusive ownership with full powers of alienation is
the important feature of property
• Muslims do not recognise the concept of joint Family
as a separate entity or the distinction between
separate property or the joint family property, i
• rrespective of whether the property was inherited
from the father or any other paternal ancestor
•
• Where two sons inherit the property of their
father, they take the property as tenants- in-
common (Separate property) and not as
joint tenants(Joint family)
• Though for the convenience sake they stay
together they do not for a joint family
• The sons does not have a right by birth in the
father’s property
• No concept of trading families
• For carrying on trade members may together own
property and may entrust its management to one family
member as it manager, but he does not take the label of
‘’Karta”’
• No concept of trading families or family business under
muslim law
• Where a only one family member conducts a business and
others assist him,
• they are neither automatically included in the firm, nor do
they acquire any ownership in the assets by virtue of they
being either the proprietor’s sons or relatives
• Where the father using the property of other members
starts a business and conducts on behalf of the family
members including the minors, in the absence of express
authorisation, his actions cannot bind the shares of other
members
• Single scheme of succession
• Muslim law provides a single scheme of succession
irrespective of sex
• Blood relation or consanguinity is the primary principle
Under muslim law a woman acquires absoute right in the
property that she inherits
Even after her marriage, neither succession rights nor her
control over the inherited property is adversely affected.
• Heritable propperty
• A muslim is not permitted to bequeath more than
1/3 of his estat without th consent of his heirs
• Before the net assets of an intestate are calculated,
the estate is liable for payment of certain expenses and
liabilities
• They are funeral epenses, unpaid debts, un pid dower
other expenses incurred in obtaining letters of
administration from the court
• These expenses are to be deducted from the estate,
before it is distributed among the heirs
• No recognition of right by birth
• So long as the father is alivve, he enjoys full power of aliention
• Son has a mere spes successionis( a hope or chance)
• This hope depends upon 2 conditions
• One that he survives the fther
• Two ,, That there is a property available

• If the faheer makes a gift of his property during his lifetime, the
validity of the same cannot be challenged by his son, on the ground
that he is the future owner of the property, so longas the father is
alive
• Wherre th father dies the son ca challenge the validity of the gift,
as now it is not mere chance of inheritance, but he has
• Spes successionis cannot be transferred nor
renounced
• Muslim law expressly prohibits the mere
chnce of succession and renouncement in
favour of any one
• However , if the expectant heir receives
consideration an miisleads the owner, he can
be debarred from claimming the inheritance
at the time when the succession opens
• Ghulam Abas Vs. Haji Kayyum Ali, AIR 1973 SC 554
• A muslim man had a wife, 5 sons and 2 daughters. During his life
time he incurred debts
• . His three sons who were financially well off came to his rescue.
An arrangement was entered in to by all the sons, where in
consideration of the payments of the debts and payment of some
consideration, the other two sons relinquished
• their claims of in heritance in favour of these brothers
• They did not set up any claim during the life time of he father.
After his death thye wanted to inherit their inheritancce rights
• S.C held hat they had received consideration and had misled the
owner therefore they were prevented from setting up their claims
now
• Ex A muslim has a wife W and a daughter D
• D in consideration of Rs. 5,ooo paid to her by
her father agrees to relinquish her share in his
property in favour of W
• Later A dies an when the succession opens, D
would be entitled to claim her share. What she
had relinquished was a mere spes successionis,
the relinquishment or transfer of which was void.
• At the same time as she has Rs.5,000 from the
father, that was not in the nature of a gift, she
would be liable to account for the same
• For those who are married under the Special
Marrige Act 1954
• Muslim law of succession does not apply
• If he gets married to a muslim or even a non
muslim
• If his marriage was contracted under muslim
law, but was registered under the S.M Act,
The rules of Indian Succession Act 1925 will
be applicable
• Disqualifications
• Difference of religion
• Only a Muslim can inherit from a muslim
• This was modified by Caste Disabilities Removaal Act, 1850
• A convert who is a non-muslim can inherit from a muslim
• Ex A muslim man has a son, who converts to christian faith
• Under muslim law this convert son being a non muslim
could not have inherited the property of his father
• But due to Act of 1850, he would be entitled to inherit the
property of his father
• Similarly, a Hindu married man having a son
converts to muslim faith, and then dies, sincce
he at the time of his death was a muslim,
muslim law of succession would apply to his
property
• His Hindu son being a non-muslim
cannot inherit his property
• Homicide
• A person causing the death of another cannot
inherit his property by inheritance or even
through testamentary succession
• Under sunni law, the rule is applied very strictly,
irrespective of whether the death was caused
intentionally or even accidentally
• Under Shia law, the disqualification is operative
only where death was caused intentionally
• Illegitimate child
• Legitimacof marriage, it is an illegitimaye under muslim
law is closely linked to the establishment of paternity
of the child, which can be done by a direct or indirect
proof of marriage between the parents
• Under a muslim law a child who is born after 6 months
from the date of contacting a marriage is preesumed to
be a legitimate
• Where it is born within six months, it is an
illegitimate child
• There is no o consensus on this beween Sunni and
Shia
• Upon the dissolution of marriage, Shias
regard the child as legitimate, if it was born
with in 10 lunar months
• For Hanafis if it was born within 2 years
• For Shafe’’ iis and Maliki if it was born within
4 lunar months
• Comparison between the Rule under Indian Evidence
Act,1872 and Muslim law
• 1) Under muslim law a child should beborn after 6
months of the marriage
• Under Sec.112 of I.E.Act a child born soon after the
solemnization of msrriage would be a legitimate child,
unless the father proves non access to the motheer
• 2) Where a child is born after the dissolution of marriage
Under I.E>Act to conditions must be satisfied for according
to he legitimacy to the chcild.
• First the the child should be born within 280 days from th
dissolution
• Secondthat th mother should rmain unmarried
• However under Shia law the time is 10 months
• Under Hanafi law 2 years
• 3)Under the I.E.Act an allegation or charge of
adultery is not sufficient to disclaim paternity and
the husband must prove non access to the
mother
• Undermuswlim law, if the putative father
disclaims it by lian(accustion of adultery), it is
sufficient
• Inheritance Rights of illegitimate children
• Under Sunni lawn illegitimate child does not
inherit from any of th parents not from any of
their relatives.
• Objects Underlying the Islamic scheme of
inheritance
1) to ensure that the deceased get a substantial
part of the estate ofthe deceased get a
substantial part of the estate
This is achieved by imposing a restriction upon
testamentary power
• 2)Scheme of distribution among the heirs should
not be distorted by he exercise of testamentary
power
• This is achieved by forbiddding bequests to
heirs
• A mahomedan cannot by wil bequeath property
to any of his heirs unless the other heirs consent
to it. Such consent isto be obtained after the
death of the testator. This is because no one can
have an heir while alive
• 3) Heirs should be properly classified according to the
degree of relation ship
• According to the Hanafi law 3 classes of heirs
• Sharers, Residuaries and Distant kindreds
• Sharers ans Residuaries are nearers than Dist. Kindreds
• Distan Kindreds do not inherit if there are either sharers
and Residuarers
• Exception
• Distant Kindreds can take when theree are no residuaries
• Shias do not recognise Distant Kindreds
• They recognise deccendants of shars as sharers and
desccendants of residuaries as residuaries
• Sharers
• A) Primary heirs
• certain heirs are so near that they must get a
share and should not be excluded from
inheritance They are th primary heirs, They
always take a part of inhritance.
• (1) Children : Son: Always a resideary
• When he is present the shares
• Some others are reduced so that he
always gets some part of the inheritance
• Daughter : with son she becomes residuary
• Oterwise sharer Her share is =1/2
• Teo are more daughters::
• with son she becomes residuary
• Otherwise 2/3 collectively
• 2) Husband : Always sharer: with child or child
of a son (How low so ever)= ¼
• when no child or child of ason (H.L.S)=1/2
• 3) wife or wives: Always a sharer
• with child or child of a son H.L.S =1/8
• with no child or child of a son H.L.S= ¼
• 4). Father: Becomes a Residuary , when he has no son or child of a son
H.L.S
• when there is child or child of a son H.L.S=1/6
• 5) Mother = Never Residuary
• when there is child or child of a son H.L.S or more than one brother or
more than 1 sister or
• 1 Sister + 1 Brother = 1/6
• otherwise = 1/3
• If there is father + Husband ( or wife) .... = 1/3 of what is left
• After deductiing Husband”s or wife ‘’s share
•
• B) Substitutes for primary heirs
• (6) Son’’s daughter H.L.S
• while the son ( or daughter) is a primary heir.
• Child of a son H.L.S is a substitute
• Substitute is excluded by the corresponding primary heir
• Thus the son’’sdaughter is a sharer but is excluded by the
presence of the son
• A son’ s daughter H.L.S is excluded by a higher son’s son
• with equal son’’s son H.L.s she becomes residuary
• Thus the son’’s daughter becomes a residuary along with
son’’s son
• When she is not excluded or converted into a
residuary, she takes as a sharer and her share is
½ , when there is no daughter or higher son’’s
daughter.
• when there are 2 or more such persons, to
gether they take = 2/3
• with one daughter( or higher son’’s daughter)
her share is reduced to 1/6 and even when there
are several such sharers they take together only
1/6.
7) True Grand father is a substitute for father
He is excluded by the father (or near true grand father)
when he is not excluded his share is =1/6
when there is no son or child of a son H.L.S.
False grand father is only a distant Kindred
8) True Grand mother
Her share (or their shares when there are 2 or more)
would be 1/6
Being a substitute for the mother who is a primary
heir, she is excluded by motheer
• C ) Brothers and sisters
• 9) Uterine brother & 10, Uterine Sister
• Full Brother( descended from common parents)
• Consanguine brother( one descended from same father
but by different mother) is a residuary
• Uterine brother ( having common mother)
• is a sharer only
• He is excluded by child, or child of a son H.L.S, father or
true Grand Father
• When not excluded His share is 1/6 )
• When there are 2 or more uterine Brothers all will take
1/3
• Uterine sisters also take subject to these
rules
• When there are uterine broher and uterine
sisters all will take = 1/3
• 11) Full sisteer: with Full brother, she
becomes a residuary’.
• She is excluded by the same persons as
exclude utrine brotheer. Her share is ½
 12) Consanguine sisteer
• with consanguine brother she beccomes a
residuaryther
• She is excluded by those who exclude a full
sister and also by the Full Broter or full Sister
• When not excluded and when not converted
into a residuary her share is ½ ( 2/3 wheen
two or moreConsanguine sisters)
• Therre are thus 12 sharers altogether
• General Principles of succession among sharers
• A) A claimant who trces his relation to the
propositus through certain perssons cannot take
while that person is living
• on this principle sister is excluded by the father
• Exception
• But the mother does not exclude even a uterine
brot her or uterine sister
• B) within each class of heirs, the nearer in degree
excludes the remoter.
• Thus the son excludes th son’’s son
• Fatheer excldes father’’s father or father’’s mother
• Daughter thouugh nearer, does not exclude Brother’’s
son because they are in different classes , i.e., daughtr
being a sharer while brother’’s son is a residuary
• Father does not exclude mother’’s mother
• Mother does not exclude Father’’s father
• When there is one daughter, son’’s daughter is not
excluded but takes a reduced share of 1/6
• C) Substitute heirs are excluded
• Residuaries
• Residuries tke what is left after the claims of sharers are satis fied
• They are
• 1 Des endants
• son when he is there dughter is a sharer. Son takes double share
• son’’s son H.L.S. Nearer excludes the remoter
• Son’’s daughter H.L.S with equal son’’s son takes as residuary
• With lower son’’s son, she takes as residuary
• son’’s son H.L.S. Takes the double the portion of Son’’s daughter
• II) Ascendant Residuaries
• 3. Father and 4)true grand father. Nearer
excludes the remoter
• III) Collaterals
• A) Descendants of father
• 5) Full Brother: full sister takes as residuary with full
Brother FULL brother takes double the full sister
• 6)Full Sister: If residuaries 1 to 5 are not there, she
takes as residuary with daughters or son’’s daughter
H.L.S or with 1 daughter + son’’s daughter
• 7) Consanguine brothers
• Consanguine sister takes with him as
residuariy a half of what he takes
• 8) Consanguine sister
• She is a residuary, in default of residuaries 1
to 7’if
• there be daughter or daughters;
• Or son’’s daughter or daughters H.L.S
• 9. Full Brother’’s son
• 10. Consanguine brother’’s son
• 11. Full Brother’’s son’’s son
• 12. Consanguine brother’’s son’’s son
• B) Descendants of True grand Father H.H.S
• 13 Full paternal uncle
• 14 Cansanguine paternal uncle
• 15 Son of full patrnal uncle
• 16 son of Consanguine paternal unccle
• 17. son’’s son of full paternal uncle
• 18. Son’’sson of consaanguine paternal uncle
• It is obvious that the residuaries are agnates
• Uterine brothers and uterine sisters being
connected through a female are not residuaries
• Daughtr is a residuary with son but not with
son’’s son
• Sister is residuary with brother but not with
Brother’’s son
• Son’’s daughter is residuary not only with
son’’sson but also with lower son’’s son.