Unit 2

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Deemed to be University
Introduction: Customary Principles of Succession
In the pre-Islamic Arabia, the law of inheritance was based on Comradeship-
in –arms and on this basis, even the wife and the children were excluded from
inheritance.
The four basis principles of the pre-Islamic law of succession were:
1. The nearest male agnates or agnates succeeded to the total exclusion of
remoter agnates.
For example , if a Muslim died leaving behind a son, and a son of a
predeceased so, then the son inherited the entire property and the grandson was
totally excluded.
2. Females were excluded from inheritance and also the cognates. For
example , a daughter or a sister or a daughter’s son or sister’s sons could
never succeed to the property.
3. The descendants were preferred over the ascendants, and ascendants over
the collaterals. For example, in the presence of son , father could not
succeed. Similarly, in the presence of father, brother could not inherit.
4. Where there were more than one male agnates of equal degree, all of them
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Inherited the property and shared it equally, taking per capita. For example if a person
died leaving behind three brothers, all of them succeeded and each took one-third of
the state.
After the Origin of Islamic Religion: The Koran did not create a new structure of
succession , but merely amended and modified the customary law of succession so as
to bring it in conformity with Islamic philosophy. The Prophet introduced the
following new principles on the aforesaid customary law of inheritance.
1. The husband and wife being equal are entitled to inherit to each other.
2. Some near females and cognates are also recognized and enumerated as heirs.
3. The parents and certain other ascendants are made heirs even when there are
descendants.
4. The newly created heirs(those who were not entitled to inherit under customary
law) are given specified shares.
5. The newly created heirs inherit the specified shares along with customary heirs,
and not to their exclusion.

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After allotting the specified share to the newly created heirs, who are called
sharers, whatever is left (residue)-and the scheme is so laid down that
something is usually left which will go to the customary heirs who are called
residuaries. For instance, if A , a Muslim , dies leaving behind a widow, W ad
two sons S and S1, then W will take 1/8 as a specified share and S and S1 will
take the residue, that is 7/8.
The superimposition of the Koranic principles on the customary law of
inheritance has led to divergence of opinion among he Shias and Sunnis
resulting in the propagation of two different rules of inheritance.
Objects for Islamic law of Inheritance:
1. The first object of the Islamic Law of inheritance is to ensure that the
relations who are dear and near to the deceased owner get a substantial part of
the state of the deceased. This object is achieved by imposing a restriction
upon the testamentary power.

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2. The second object is that the scheme of distribution among the heirs
should not be distorted by the exercise of testamentary power . This is
achieved by forbidding bequests to heirs. A Sunni Mohammedan cannot
by will, bequest property to any of his heirs , such a bequest would be void
unless the other heirs consent to it. .
Under Shia Law so long as the testator is not bequeathing more then 1/3rd of
his estate, he can make a bequest even to an heir. It is only the bequest
exceeds 1/3 of his estate , then other heirs consent is required.
3. The third object is that the heir should be properly classified.
according the degree of relationship to the deceased.
According to Hanafi Law , they are three classes of heirs :
3. Sharers
4. Residuaries
5. Distant kindred.
The distant kindred do not inherit if there are either sharers and Residuaries .
There is only one exception to it . Distant Kindred can take when there are no

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residuaries though there is the husband or wife as heir.
The Shias do not recognize the category of Distant Kindred.
Introduction to Succession under Islamic Law
Succession in Muslim law may be:
(1) Testate or (2) intestate, depending on whether the deceased died leaving a
valid last will or not. The two great sects of Islam are the Sunni and Shia
sects, and the former is divisible into four major sub-sects or madhabs
named after the jurists who founded them, namely, the Shaffie, Hanafi,
Maliki, and Hanbali schools.
The Shia sect is in turn divided into three major schools, known as Ithna-
Ashari, Ismaili (which includes the Dawoodi Bohras) and Zeydi. As far as
the difference of religion is concerned, the general rule is that a
Non-Muslim does not inherit from a Muslim or vice versa. ----

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General Principles of Inheritance under Muslim Law for Intestate Succession:
The Principles of Intestate Succession comes into place in case a person

dies without leaving his will for the distribution of the property owned by him
at the time of his death.
Shariat Application Act, 1937 is applicable for Muslim inheritance
Shariat Act,1937 was brought about to bring uniformity to Muslim laws in
India. Prior to its application Muslim laws were diluted with Hindu laws for
succession purpose (this was especially seen in Bohras). Thus, to prevent this,
Shariat Act 1937 was needed.
The Shariat Application Act 1947 chiefly addresses the grievance regarding the
customs altering the Mohammedan Law of intestate succession.
It made the Quran, Hadiths, Ijma and Qiyas applicable to Muslims in India.
Prior to the Shariat Act the general rule of customary law was agnatic
succession which excluded all females except a widow and a daughter and
they were allowed only a life interest or a bare maintenance but not absolute
ownership.
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The general Principles associated with Muslim Law of Inheritance are as
follows:
The deceased owner of property is called the Prospositus. If Propositus is a
Sunni, Sunni law of Inheritance applies and if he is Shia , Shia law applies.
In India the presumption is that a Mahomedan is a Sunni.
1. Nature of the Heritable Property: The meaning of heritable property is that
property which is available for an inheritance to legal heirs. After a Muslim
dies, his properties are used for paying the funeral expenses, debts and the
wills. After the payment of these expenses, the remaining property is
recognized as heritable property.
For the purpose of inheritance, the Muslim Law of Inheritance does not make
any distinction between the movable and immovable property or corporeal
and incorporeal property. Any property which is in ownership of the deceased
at the time of his death would be considered as Heritable Property.

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2. Joint or Ancestral Property:
The Muslim Law of Inheritance does not recognize the concept of a joint
family or of coparcenary property. In case the Muslim dies, his properties
devolve on his heirs in a definite share of which the heir becomes the absolute
owned by him will devolve to his legal heirs and the same process continues.
Also, there is no distinction between the Self-Acquired property and the
Ancestral Property.
3. No Birthright under the Muslim Inheritance Law: Islamic Law follows
the principle of ‘nemo est haeres viventis’ i.e. nobody can become an heir
to a living person. This means under Muslim law, the legal right to
inheritance of property arises only upon the death of the deceased and not
upon the birth of the child. That means , when the owner is alive, the
person who would succeed to the property on his death is an heir apparent
and his right is a chance of succession(Spes Successionis):
Spes Successionis is not the subject of a valid transfer or release.
4. Heirs of a Mohammedan succeed to the property as tenants-in-common
and not as joint tenants.
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Another point to note is that an heir can only gain a share in the property of the
deceased if the heir outlives the deceased. However, if the heir apparent dies
before the deceased then he or she will gain no right to inheritance and
thereby their family members cannot take up their share in place of them.
Under the Hindu law, a coparcenary gains interest or right in the
property of the deceased the moment such a coparcenary is born. This right to
property by birth . But because there is no concept of a joint family under
Muslim law, there is no concept of the right to property by birth either.

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4. Illegitimate child: Under the Hanafi law, An illegitimate child is not

entitled to inherit from its father, but it is allowed to inherit from its mother.
The mother can also inherit the property of her illegitimate child. The
illegitimate child inherits not merely the property of its mother but also the
property of all other relations with who, it is related through the mother .
Thus, when a Hanafi female dies leaving behind her husband and an
illegitimate son of her sister, the husband will take1/2 as sharer and the residue
will go to the sister’s son. Under the Ithna Ashari (Shia) school , an
illegitimate child is treated as nullius filius, and cannot inherit the property of
any of its parents, or any other person through its parents
Under Shia law the illegitimate child does not succeed even to the
mother.
5. Non Muslim: Under the Islamic law, a non-Muslim was not entitled to
inherit the property from a Muslim. In India this is not so. According to
Section 3 Caste Disabilities Removal Act, A Muslim who has renounced

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Islam, or had in any manner ceased to be a Muslim, will nonetheless, be
entitled to inheritance in the property of his deceased Muslim relation whose
heir he is. But his Non-Muslim descendants will not be entitled to inherit the
property of the deceased Muslim. The inheritance to the property of a convert
to Islam is governed by the Muslim Law. A Non-Muslim cannot inherit from
a Muslim.
Where a convert to Islam died leaving behind an only daughter, as against the
claim of his non-Muslim relatives she was given all his property – ½ share as
her fixed share as Quranic heir and the reminder by way of return.
6. Insanity and Unchastity: Insanity and Unchastity are not disqualifications

under the Muslim Law and therefore, an insane or unchaste heir is entitled to
inherit.
7. 7. Rule of Primogeniture : The eldest male member has a preferential claim
over the estate of the deceased father- Sunnis do not consider it but Shia’s
consider. S. Fateyab Ali Meerza v. UOI
Under the Ithana Ashari Law, the eldest son who is of sound mind is
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exclusively entitled to wearing apparel of his father, his copy of Koran,
his sword and his rig, provided the father had left some other property
besides these.
10. Childless widow: It has been held that a childless widow, in the absence
of other heirs, is entitled to inherit not merely her share but also rest of the
property including the land of her husband by the application of the
doctrine of return.
11. Rights of Females:
Both Male and Female are equal under the Muslim Law of Inheritance and
males are given any preferential right of inheritance over the right inheritance.
However, generally, the share of the male is double the share of the female.
The reason behind this is that under the Muslim law a female shall upon
marriage receive ‘Mahr’ and maintenance from her husband whereas males
will have only the property of the ancestors for inheritance. Also, males have
the duty of maintaining their wife and children.
8. Escheat: Where a deceased Muslim has no legal heir under Muslim law, his
properties are inherited by Government through the process of escheat.
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12. Rights of a Widow:
Widows are also entitled to the property in a succession as per Muslim law. A
childless Muslim widow is entitled to one-fourth of the property of the
deceased husband, after meeting his funeral and legal expenses and debts.
However, a widow who has children or grandchildren is entitled to one-eighth
of the deceased husband’s property. If a Muslim man marries during an illness
and subsequently dies of that medical condition without brief recovery or
consummating the marriage, his widow has no right of inheritance. But if her
ailing husband divorces her and afterwards, he dies from that illness, the
widow’s right to a share of inheritance continues until she remarries.
13. Missing Persons:
According to the texts of Hanafi law, a missing person was supposed to have
been dead only after ninety years from the date of his birth; till then the
inheritance of his properties did not open. But, now this rule has been
superseded by Sec. 108 of the Indian Evidence Act, 1872 which provides as
under: “When the question is whether a man is alive or dead, and it is proved
that he has not been heard of for seven years by those who would naturally
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have heard of him if he had been alive, the burden of proving that he is alive is
shifted to the person who affirms it”.
Accordingly, where a Muslim is missing for at least seven years and if it could
not be proved that he (or she) was alive then, that person is legally presumed to
be dead and the inheritance of his (or her) properties opens.
Grounds for disqualifications
Disqualifications which debar the heirs to succeed the property of the intestate
are
14. Murderor: Under the Sunni Law, a person who has caused the death of
another, whether intentionally, or by mistake, negligence, or accident, is
debarred from succeeding to the estate of that other. Homicide under the
Shia Law is not a bar to succession unless the death was caused
intentionally.
15. Child in Womb: At the death of the propositus , the heir may be in the
womb, in such a case , if the child is born alive it can take the property. If it is
born alive , though it may die even a few minutes thereafter, its share will be
set apart and that share will go to its heir, and this dead heir will become a
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Rules in Hanafi Law of Inheritance are:
1. The rules of distributing the Estate of a deceased Mohammedan is to
be applied for the
(a) First and foremost for the payment of his/her funeral expenses and
deathbed charges.
(b) Any wages due for the services rendered within 3 months prior to
his/her death, any
(c) other debts of the deceased according to their respected priorities. After
payment of these above mentioned categories,
(d) The legacies made by a deceased Mohammedan shall not exceed one-
third of his/her estate.
(d) Payment of debts of the deceased takes precedence over the legacies.
(e) A Mohammedan cannot dispose of more than one-third of his estate by
way of will unless the heirs consent thereto.

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(f) A deceased Mohammedan is presumed to have been a Sunni and the
onus of proof (to prove that the intestate is a Shia) is on the person
alleging it.
(g) Succession of a Mohammedan’s property takes place according to the
rules of the Sect to which the person belonged at the time of death and not
according to the rules of the Sect to which the heirs belonged.
2. The next step is to divide the residue if any among such of the
residuaries as are entitled to the residue.
3. If there are no sharers, the residuaries will succeed to the whole
inheritance.
4. If there be neither sharers nor residuaries, the inheritance will be
divided among such of the Distant Kindred as are entitled to succeed
thereto.
5. The Distant Kindred are The Distant Kindred are relations by blood,
who are not entitled to succeed so long as there is any heir belonging to
the class of sharers or residuaries.

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6. There is only one case in which the Distant Kindred will inherit with
the sharer and that is where the sharer is the wife or husband of the
deceased.
7. Sharers have prescribed shares in the Shariat. The residuaries have no
prescribed share but take the residue after distribution to the sharers.

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The classification of Heirs under Muslim Law for inheritance:
1. First class is called the Zav-il-Furuz or the Sharers,

2. Second class is called the Asabah or residuaries or agnates and
3. Third class is called the Zav-il-Arham or the Distant Kindred (uterine
relations).
The respective shares of the heirs amongst these three classes are distributed
in the following manner:
I. Zav-il-Furuz (Sharers): The heirs falling under the category of Sharers are
entitled to the Quranic Shares in accordance with Holy Quran and the
traditions of the Holy Prophet. The first rule of intestate succession is that the
Quranic “Sharers” must first (before all others) be assigned their Quranic
shares. The Sharers then are the most important class of heirs who take
primacy in that they are entitled before all others, the shares allotted to them
either by the Holy Quran, or by the traditions.

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The list of the Sharers under the Muslim Law of Inheritance is well defined
and there will be no difference in it irrespective of the Intestate being a Shaffie,
Hanafi, Maliki, Hanbali or a Shia. However, each school of thought might
have slight differences in the application of the rules of inheritance. The
number of Sharers (Zav-il-Furuz) is twelve in number. The Share of the
Sharers varies depending upon the varying circumstances. Four of the Sharers
are males and there are eight females, which clearly explodes the theory
advanced by some critics of Islam that our great religion discriminates against
women.
In case of some sharers, their shares vary under certain circumstances. Some
sharers under certain circumstances do not inherit as sharers, but as residuaries.
The four male sharers are:

(a) the father;
(b) the grandfather or lineal male ascendant (when not excluded);
(c) the uterine brothers; and
(d) the husband.
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The eight female sharers are as follows:
(a) the widow,
(b) daughter,
(c) son’s daughter or the daughter of a lineal male descendant how low-so-
ever,
(d)mother,
(e) True grandmother,
(f) full sister,
(g) consanguine sister, (half-sister on the father’s side), and
(h) uterine sisters, (half-sisters on the mother’s side).
Important definitions:
1. True grandfather: A male ancestor between whom and the deceased, no
female intervenes is known as the true grandfather.
For Instance, (a) the father’s father (b) father’s father’s father and his father
how high so ever - are all true grandfathers.

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2. False Grandfather: A male ancestor between whom and the deceased, a
female intervenes is know as the false grandfather. For instance: (a)mother’s
father (b) mother’s mother’s father (c ) father’s mother’s father- are called
grandfathers.
3.True grandmother: A female ancestor between whom and the deceased, no
false grandfather intervenes is know as the true grandmother. For instance:
(a) Father’s mother (b) Mother’s mother (c ) father’s mother’s mother (d)
father’s father’s mother (e) mother’s mother’s mother – are all true
grandmothers.
4.False grandmother: A female ancestor between who and the deceased, a
false grandfather intervenes. Thus, mother's father’s mother is false
grandmother.
5.Sons son how low soever: Lineal male descendants are known as son’s son
how low soever. For instance-(a)son’s son (b) son’s son’s son and so on.
6.Son’s daughter how low soever: The female children of lineal male
descendants are known as son’s daughter low soever. Thus, son’s daughter,
son’s son’s daughter and so on are called son’s daughter how low soever.
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General principles of Succession Applicable to Sharers:
The rules applicable for succession among Sharers are:
1. Within each class of heirs , the nearer in degree excludes the remoter.
(a) Thus a son excludes son’s son.
(b) Father excludes father’s father or mother’s father.
(c) Daughter , though nearer , does not exclude Brother’s son because they are
in different classes: daughter being a Sharer while brother’s son is
residuary.
(d) Father does not exclude mother’s mother. Similarly mother does not
exclude father’s father.
(e) When there is one daughter, son’s daughter is not excluded but takes a
reduced share of 1/6.
2. A claimant wo traces his relation to the propositus through a certain person
cannot take while that person is living. On this principle :
(f) Brother or sister is excluded by the father.
(g) The mother however, does not exclude even a uterine brother or uterine
sister. This is an exception.
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Who are Sharers according to Hanafi Law?
(A) Primary heirs: Certain heirs are so near that they must get a share and
should not be excluded from inheritance. These are the primary heirs. They
always take part of the inheritance, they are:
1. Children :
(a) Son : He is always a Residuary. When he is present the shares of some
other are reduced so that he always gets some part of inheritance.
(b) Daughter: The daughters of the deceased become Quranic heirs only in
the absence of a son. Single daughter receives ½ share, but if there are
more than 1 daughter, then all of them inherit ⅔ share collectively, which
they share equally. But if there is a son she becomes residuary
2. Husband: He is always a sharer: With child or child of son , how-low-so-
ever , it is 1/4. When no child or child of son, how –low-so-ever, it is 1/2.
3. Wife: A surviving wife is entitled to receive of the heritable property, it is
1/4, in circumstances where the husband has not left any child or son's or
grandson's child . If the husband has left a child, then the wife inherits 1/8.
Where there is more than one wife, then they have to divide this share equally
amongst themselves.
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4. Father: The father becomes a Quranic sharer only if the deceased has left a
child or son's or grandson's child and inherits 1/6 of the deceased estate.
Otherwise, he is not a Quranic sharer, he will become a residuary.

5. Mother: There are 3 distinct scenarios for the mother's inheritance:
(i) 1/6 share: Where there is a child or son's child how low so ever or where
there are 2 or more brothers or sisters or one brother and one sister, whether
full, consanguine or uterine.
(ii) 1/3 share: When there is no child or child of the son how low so ever and
no brothers or sisters.
(iii) In circumstances, where there is a father and a wife or husband.
It is 1/3 of remaining share after deducting the wife's or husband's share:
And the mother is never a Residuary.


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(B) Substitutes for Primary heirs (6 to 8)
6. Son’s daughter how-low-so-ever: While the son or daughter is a primary
heir, child of a son how-low-so-ever is a substitute. The substitute is
excluded by the corresponding primary heir.
The son's daughter becomes a Quranic sharer only if she is the daughter of
predeceased son of the deceased and such a son has not left behind any son of
his own. So, a single son's daughter receives ½ share while 2 or more son's
daughters receive 2/3 collectively, which they are required to share equally. If
such grand-daughters survive with a single daughter of the deceased, they
collectively get ⅙ share.
7. Paternal (True) Grandfather:
The grandfather is a substitute for Father: he is a male ancestor between
whom and the propositus there is no female link. He is excluded by the
father. Hence A paternal grandfather becomes a Quranic sharer only when
the father of the deceased is absent. He is entitled to receive 1/6 of the
share. In the circumstances in when there is no child or children of a son
how-low-so-ever to the propositus , then He becomes a residuary.
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It is important to note here, that the grand Maternal grandfather or false
grandfather is only distant kindred.
8. True Grandmother:
Only in those cases where both the parents of the deceased are absent, the
paternal grandmother becomes a Quranic heir. She is entitled to get 1/6 share
of the heritable estate. If there are 2 or more grandmothers of the deceased
(maternal or paternal) who become Quranic sharers, then both the
grandmothers will get a joint share of 1/6 which they have to share equally.
(C) Brothers and Sisters:

9. Uterine Brother and Uterine Sister.
10. The Full Brother, (that is one descended from common parents) and
Consanguine brother(that is one descended from same father but different
mother) is a residuary only . The Uterine brother ( that is one having common
mother only) is a sharer only. He is excluded by child, child of a son-how-
low-so-ever, father or True grandfather.
• When he is not excluded, his share is 1/6 .
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• When there are two or more Uterine brothers it is 1/3.
• Uterine sisters also take subject to these rules. Where there are uterine
brothers and uterine sisters they together take 1/3.
11. The Full sister: With Full brother, she becomes a residuary. She is
excluded by the same persons as exclude the Uterine brother.
A single full sister receives 1/2 share of the heritable estate when there is
no son how low so ever, father, grandfather, daughter, son's daughter or
brother. When there are 2 or more full sisters and no excluder, the sisters
will get 2/ share collectively.
12. Consanguine sister: With consanguine brother, she becomes a
residuary. She is excluded by the Full brother and Full sister. When
not so excluded and when not converted into residuary, her share is 1/2.
If there are two or more consanguine sisters, they take 2/3 collectively.
The above mentioned are thus the twelve sharers altogether and the shares
which they take are explained. …… (Kindly refer to the inheritance
charts shared through Whatsapp group for better understanding).

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Problems: Distribute the inheritance among the following heirs:
Q 1: If there are only Husband and father for the Propositus:

Ans: (a) Husband : ½
(b) Father: As residuary 1/2
Q 2: If there are only, Father, mother and Daughter for the Propositus:
Ans: (a) Mother: 1/6
(b) Daughter 1/2
(c) Father 1/6 as sharer plus As Residuary because of no son.
Q 3: If there are only, Father, mother and Sister for the Propositus
Ans: Mother : 1/3
Sister; excluded by father
Faher : Residue(2/3) (because there is no son)

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Q 4: If there are only, Widow, Son and Daughter for the Propositus:
Ans: (a) Widow: 1/8 (it is reduced because of children)
(b) Son and Daughter : they are residuaries, but the son will inherit
double of daughter.
The share are Son 7 and 2/3 = 7/12 and daughter 7/24
Q 5: If there are only, Husband and father for the Propositus:
Ans: (a) Husband : 1/2
(b) Father: As residuary 1/2.
Q 6: If there are Father, Mother, Father’s Father, Mother, Daughter and 4
widows, two full sisters, a brother and a son to the Propositus:
Ans: (a) Father: 1/6(because there is a daughter)
(c) Father’s father: is excluded by Father:
(d) 4 widows: 1/8(each 1/4 of this)
(e) 2 full sisters: ( excluded becaseu of daughter and father)
(f) Brother: (excluded by son as Residuary).
(g) Son and with him daughter as Residauries take 13/24 with double
portion of son.
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B . II Asabah or agnates or the Quranic Residuaries:
When there are sharers and a residue of estate is left after allotting them their
shares or when there are no sharers, then whatever is left in the former case,
and the entire estate in the latter case, goes to the residuaries.
There are certain sharers who do not take their specified shares if a residuary
of equal rank co-exists. In such a case they become residuaries. They are
called the Quranic residuaries, or residuaries with another. They are shown in
the table below:

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Koranic residuaries or residuaries with another
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Sl no. Sharers Circumstances in which the sharer becomes residuary
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1. Daughter When there co-exists a son of the deceased

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2. Son’s daughter When there co-exists:
(a) Son’s son, or
(b) A male agnatic heir in a lower degree
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3 Son’s son’s When there co-exists:
daughter (a) son’s son’s son or
(b) a male agnatic heir in a lower degree.
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4. Full sister When there co-exists a full brother.
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5. Consanguine sister When there co-exists a consanguine brother.
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The residuaries may be classified into (i) Descendants , (ii) Ascendants and
(iii) Collaterals
(i) Descendants:
1. Son: (a) When there is a daughter, he takes double portion.
(b) Where there is no daughter, he takes the entire residue
2. Son’s son, (a) When there is son’s daughter, he takes double portion
how-low-soever. (when there is equal son’ son, but there is a lower
son’s son’s daughter, if she does not inherit as a sharer,
inherits as residuary with lower son’s son).
(b) Nearer Son’s son excludes remoter.
(c ) Two or more son’s son s take the estate in equal sharers.
(Per Capita)

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B Ascendants:
3. Father: As a residuary, he takes the entire estate.
4. True grandfather: (a) As a residuary , he takes the entire estate.

(b)The nearer grand father excludes the more remote;
C. Collaterals:
(i) Descendants of Father:
5. Full Brother: (a) Where there co-exists a full sister, he takes double
portion.
(b) In the absence of the sister, he takes the entire
residue
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 one
daughter, son’s daughter/daughters.
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7. Consanguine Brothers: When there is consanguine sister , he takes double

portion.
8. Consanguine Sister: In default of Residuaries 1 to 7, She takes the
residue, if any, if there is/are daughter/daughters
or son’s daughter/daughters how low soever.
9. Full brother’s son: In default of above residuaries, he takes the

entire residue.
10. Consanguine Brother's In default of above residuaries, the son takes
son entire residue.
11. Full Brother’s son’s son: In default of above residuaries , he takes the
entire residue
12. Consanguine brother’s In default of above residuaries. He takes the
son’s son: entire residue.
Then come the male descendants of brother’s son’s son and then the male
descendants of consanguine brother’s son’s son alternatively.
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(ii) Descendants of the True Grandfather(h.h.l)
13. Full Paternal Uncle : He takes the entire residue.

14. consanguine Paternal Uncle: He takes the entire residue
15. Full Paternal Uncle’s son: He takes the entire residue
16. Consanguine Paternal Uncle’s: He takes the entire residue
Son
After them come the remoter male descendants , like:
17. Full Paternal Uncle’s son’s son

18. Consanguine Paternal Uncle’s son’s son
Then comes
19. Male descendants of remote True Grandfather.

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It is obvious that the residuaries are agnates. They are related through males
only. The Uterine Brothers and Uterine sister being connected through a
female are not residuaries.
After analyzing the above list , what we understand from above is:
1. There are only four female residuaries: that is :

i. Daughter;
ii son’s daughter(h.l.s).
iii. Full sister
iv. Consanguine Sister.
2. The sharers should get fixed shares and the Residuaries should take what
is left after the sharers take their shares
3. The son is always a residuary, so also is the son’s son , how-low-so-ever.
4. The father becomes simply a residuary when the deceased has not left a
child or a child of a son, how-so-ever. He takes in both capacities as
sharer and residuary.
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III. Zav-il-Arham or the Distant Kindred (uterine relations)
In the absence of sharers and the residuaries , the estate devolves on the
distant kindred. There is only one case in which the distant kindred inherits
along with a sharer, that is., when the only surviving sharer is a husband or a
wife and there is no residuary , then the husband or wife takes his or her share,
and the rest of the estate goes tot he distant kindred.
In the class of distant kindred are all those blood relations of the deceased
who have not found a place either among the sharers or residuaries, there are:
(a) Female agnates: and
(b) Cognates , both males and females .
The above two classes of relations constitute the distant kindred.
For the purpose of distribution of assets among them, the classification of

distant kindred would be into:

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(a) Descendants ,
(b) Ascendants and
(c) Collaterals.
The classification of the distant kindred may be worked out thus:
I Descendants of the deceased: Under this category , the following will fall:
Daughter's children and their descendants
(i) Daughter’s Children , how low so ever and their descendants

(ii) Children of son's daughters how low so ever and their descendants.
II Ascendants of the Deceased : Such as…
(i) False grandfathers, how high so ever.

(ii) False grandmothers, how high so ever.

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III Descendants Of Parents:
● Full brother's daughters and their descendants.
● Consanguine brother's daughters and their descendants.
● Uterine brother's children and their descendants.
● Daughters of full brother's sons how low so ever.
● Daughters of consanguine brother's sons how low so ever.
● Sister's (full, consanguine or uterine) children and their descendants.
IV Descendants Of Immediate Grand parents:

● Full paternal uncle's daughters and their descendants.
● Consanguine paternal uncle's daughters and their descendants.
● Uterine paternal uncles and their children and their descendants.
● Daughters of full paternal uncle's sons how low so ever.
● Daughters of consanguine paternal uncle's sons how low so ever.
● Paternal aunts (full, consanguine or uterine) and their children.
● Maternal uncles and aunts and their children.
● Descendants of remote ancestors how high so ever (true or false).
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4. Escheat: (State as an Heir by Escheat)
Finally, in the absence of any of the principal or subsidiary categories, the

property of the deceased is inherited by the State and his whole estate would
escheat to the Government. In modern India , it is an established rule tht the
estate of an heirless Muslim devolves on the State. The State takes the
property of an heirless Muslim by escheat , but takes it subject to any trust,
charge or liability affecting it.
To conclude, Upon the death of the deceased, the first step is to make the
payment for funeral expenses, debts and legacies of the deceased. Next, the
property is divided amongst the respective relations or sharers in proportion to
the shares they are entitled to receive. If any residue remains, it is then divided
among the residuaries. If there are no sharers and residuaries, the whole
property will be inherited by the distant kindred. If the distant kindred is also
not available, they finally to the State.

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The Doctrine of RADD( Return):
Sometimes When the inheritance is distributed among the sharers, the total
shares is less than unity. Then the remainder should to the Residuaries. But
there may be no residuaries among the relations of the propositus. In such a
case the residue returns to the sharers themselves and their shares are
proportionately increased. The formula adopted where there is no husband or
wife among sharers, is to reduce the shares to a common denominator and then
the denominator of each share is reduced so as to be equal to the sum of the
numerators. By thus reducing the denominator the fractional shares are return.
In proportionately increased. This is called the doctrine of Radd or Doctrine
of Return.
In other words, If Residue is left after distributing the property of the
deceased amongst the Sharers, but there is no heir of the deceased
falling under the category of Residuary, the residue of the property
reverts back to the Sharers in the proportion of their shares. The Right
of
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the Sharers to revert back the Residue property to the Sharers in absence
of the residuary heirs is called as the Return or Doctrine of ‘Radd’.
In applying this doctrine, it should be noted that so long as there is any
other sharers or even a distant kindred, neither the husband nor the wife can
claim the benefit of this doctrine. In the absence of any other heir, the
husband or the wife as the case may be claim the benefit of the doctrine.
According to this Doctrine under the Muslim Law, the residue
property returns to the Sharers and not the Distant Kindred in absence of any
heir under the residuary category. If there is more than one Sharer then the
property should be returned in the proportionate shares and if there is one
sharer then the whole of the residue property should be transferred back to the
sole sharer. The residue cannot be transferred to the Distant Kindred because
according to the rules, the distant kindred do not get anything so long as there
is a Sharer or Residuary alive.
Exception: The exception to this doctrine is that neither the husband nor the
wife is entitled to the return so long as there is another sharer or distant
kindred alive.
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However, according to the early orthodox law, this return of residue property
was not allowed in the case of a husband or a wife but the later lawyers have
allowed the return to a husband or wife when there are no other heirs and this
claim has been recognized in India in M. A. Chowdry v. S. Banoo, and Bafatun
v. B. Khanum.
Illustration: Suppose , if there are only mother Daughter to the Propositus
● The total sum of the properties of Mother and Daughter will be, 1/6 + 1/2 =
2/3.
● 2/3 is less than the unity and the 1/3 of the property will still remain after
distributing property the amongst the Sharers. Therefore, in this case, the
doctrine of ‘Return’ or ‘Radd’ will apply.
● The first step would be to reduce the fractions of the Sharers to a common
denominator. Thus, 1/6 + 1/2 = 2/3 = 1/6 + 3/6 (The fractions are reduced
in such a form where 6 is the common denominator).

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● The second step would be to decrease the denominator to make it equal to
the sum of numerators and allow the individual numerators to remain the
same as they were. Thus, 1/6 + 3/6 will become 1/4 + 3/4 (in this case the
denominator is made equal to 4 because the sum of both numerators is 4).
● Hence, with the help of this doctrine, the Shares of the Sharers are
increased proportionately in such a manner that the sum of the Shares of the
property of Sharers becomes equal to unity.
Doctrine of ‘Aul’ (Increase)
When the inheritance is distributed among the Koranic sharers, sometimes the
total exceeds unity. So the share allottable to each sharer is proportionately
reduced. The formula adopted for this purpose is to being all the fractional
shares to one common denominator. Then the denominator of each share is
increased so as to be equal to the sum of the numerators. By thus increasing
the denominator the fractional shares are all proportionately reduced. This is
called the doctrine of Aul or Doctrine of increase.

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In other words, In case, the total sum of the specific shares allotted to various
shares exceeds the unity then the doctrine of increase (Aul) comes into the
application and the specific share of each sharer is reduced in a proportionate
manner. The proportionate share reduces in the following manner.
1. By reducing the shares to a common denominator.
2. By increasing the denominator to make it equal to the sum of the
numerators allowing the numerators to stand as they are.
Illustration: This Doctrine of ‘Aul’ can be explained with the help of an
illustration where a woman dies leaving behind her property. Then the property
left after paying for her funeral expenses, debts and legacies are distributed
among the Sharers. The husband of the deceased woman and her two full
sisters are alive and fall under the category of Sharer. Then, the Husband will
be entitled to 1/2 of the property of the deceased and the two full sisters will be
entitled to 2/3rd of the property.

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Total of 1/2 and 2/3 will be 7/6 which exceeds the unity and hence, in this
case, the Doctrine
of Increase or ‘Aul’ will come into application.
The first step would be to reduce the fractions of the Sharers to a common
denominator. Thus, 1/2 + 2/3 = 7/6 = 3/6 + 4/6 (The fractions are reduced in
such a form where 6 is the common denominator).
The second step would be to increase the denominator to make it equal to the
sum of numerators and allow the individual numerators to remain the same as
they were. Thus, 3/6 + 4/6 will become 3/7 + 4/7 (in this case, the denominator
is made equal to 7 because the sum of both the numerators is 7).
Hence, with the help of this doctrine, the total sum of the shares of the
property of Sharers are reduced in a proportionate manner and become equal to
unity.
The summary of the Illustration is:
1. Husband: 1/2 = 3/6 reduced to 3/8
2. Two Full sisters: 2/3 = 4/6 reduced to 4/8
3. Mother: 1/6 = 1/6 reduced to 1/8
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IV. Doctrine of Radd and Aul Differences
When the sum of fractions of properties to Sharers is equal to unity, there is no
problem. But if it is more· or less than unity, the shares of respective heirs are
reduced or increased respectively. The process whereby the shares are reduced
is called the Doctrine of Increase or Doctrine of ‘AUL’; and the process
whereby the shares are increased is called the Doctrine of Return or Doctrine
of ‘Radd’.
The Steps involved in the Doctrine of Increase as well as in the Doctrine of
Return are almost similar to each other. The first step involves the reduction of
the fractions of the Sharers to a common denominator. Subsequently,
the second step involves increasing/decreasing the denominator to make it
equal to the sum of numerators, and allow the individual numerators to remain
the same as they were.

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Excellence and Service

Objects for Islamic law of Inheritance:

Excellence and Service

Excellence and Service

Excellence and Service

The Principles of Intestate Succession comes into place in case a person

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4. Illegitimate child: Under the Hanafi law, An illegitimate child is not

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6. Insanity and Unchastity: Insanity and Unchastity are not disqualifications

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1. First class is called the Zav-il-Furuz or the Sharers,

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The four male sharers are:

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(C) Brothers and Sisters:

Q 1: If there are only Husband and father for the Propositus:

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B . II Asabah or agnates or the Quranic Residuaries:

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1. Daughter When there co-exists a son of the deceased

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3. Father: As a residuary, he takes the entire estate.

4. True grandfather: (a) As a residuary , he takes the entire estate.

7. Consanguine Brothers: When there is consanguine sister , he takes double

9. Full brother’s son: In default of above residuaries, he takes the

(ii) Descendants of the True Grandfather(h.h.l)

13. Full Paternal Uncle : He takes the entire residue.

After them come the remoter male descendants , like:

17. Full Paternal Uncle’s son’s son

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1. There are only four female residuaries: that is :

III. Zav-il-Arham or the Distant Kindred (uterine relations)

For the purpose of distribution of assets among them, the classification of

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(i) Daughter’s Children , how low so ever and their descendants

II Ascendants of the Deceased : Such as…

(i) False grandfathers, how high so ever.

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IV Descendants Of Immediate Grand parents:

Finally, in the absence of any of the principal or subsidiary categories, the

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Illustration: Suppose , if there are only mother Daughter to the Propositus

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Doctrine of ‘Aul’ (Increase)

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Excellence and Service

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