MUSLIM INHERITANCE

Succession under Hanafi Law

As far as Muslims are concerned, the law of succession falls into two broad streams, the Hanafi

law of succession and the Shia law of succession. Both these laws of succession form part of

the common law of India and are recognized as having the force of law by virtue of the Shariat

Laws (Application) Act. The Muslim law of succession is derived from the Sharia.

The primary source of the Muslim law of succession flows from the Holy Quran Ijmas, the

Sunnas, and the Qiyas, from all of which rules pertaining to succession can be gleaned.

The Muslim law of inheritance is a superstructure constructed on the foundation of pre-Islamic

customary law of succession.

In Islamic law distinction between the joint family property and the separate property has

never existed, and in India Muslim law does not recognize the joint family property.

Since under Muslim law all properties devolve by succession, the right of heir-apparent does

not come into existence till the death of the ancestor. Succession opens only on the death of the

ancestor, and then alone the property vests in, the heirs.

Customary Principles of succession

In the pre-Islamic Arabia, the law of inheritance was based on, what is called, comradeship-in-

arms, and, on this basis, even the wife and the children were excluded from inheritance. The

four basic principles of the pre-Islamic law of succession were:

first, the nearest male agnates or agnates succeeded to the total exclusion of remoter agnate.

Thus, if a Muslim died leaving' behind a son, and a son of a predeceased. Son, then the son

inherited the entire property, and the grandson was totally excluded.

Secondly, females were excluded from inheritance; so were cognates. Thus, a daughter or a.

sister or a daughter's son or sister's son could never succeed to the property.

Thirdly, the descendants were preferred over ascendants and, ascendants over collaterals. For

instance, in the presence of a son, father could not succeed. Similarly, in the presence of father,

brother could not, inherit.

Fourthly, where there were more than one male agnates of equal degree, all of them 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 estate.

Islamic Principles of succession

The Prophet interposed the following few principles on the aforesaid principles of customary

law of succession.

First, the husband and. the wife, being equal, is entitled to inherit to each other.

Secondly, some near females and cognates are also recognized and enumerated as heirs.

Thirdly, the parents and certain other ascendants are made heirs even when there are

descendants.

Fourthly; the newly created heirs (those who were not entitled to inherit under customary law)

are given specified shares.

Fifthly, the newly created heirs inherit the specified shares' along with customary heirs, and not

to their exclusion. 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-

goes to the customary heirs who are called residuaries.

Definitions:

Agnates- An agnate is a. relation who is related to the deceased whole through males. Thus,

the following are the examples of agnates, son, son's son,son's son's son, son's daughter, son's

son's daughter, father's father, father's,mother, father's father's .father; father's father's,mother..

Cognates- A cognate is a relation who is related to the deceased through one, or more females.

For example, the following are cognates: daughter's son, daughter's daughter, mother's father,

father's mother's father.

Collaterals- Collaterals are descendants in the parallel lines from the common

ancestor or ancestress. Collaterals may be agnates or cognates. Thus, consanguine brothers and

sisters, paternal aunts and uncles are agnate collaterals. Maternal uncles , aunts, uterine

brothers and sisters are Cognate, collaterals.

Heir- A person who is entitled to inherit the estate of another after his deaths known as an

heir.

True grandfather- A male ancestor between whom and the deceased no female intervenes is

known as the true grandfather. For instance, the father's father, father's father's father and his

father how high so ever are all the true grandfathers.

False grandfather- A Male ancestor between whom and the deceased, a female intervenes is

known as the false grandfather. For instance, mother's father, mother's father, fathers mother's

father are false grandfathers.

True grandmother - A female Ancestor, between whom and the deceased no false

grandfather intervenes are known as the true grand mother. Thus, fathers mother, mother's

mother, father's mother's mother, father's father's mother, Mothers mother's mother are all true

grandmothers.

False grandmother- A female ancestor between whom and the deceased a false grandfather

intervenes. Thus, mother's father's mother is a false grandmother.

Son's son how low so-ever- Lineal male descendants are known as son's son how low so

ever. For instance, son's son, son's son's son and so on, are all son's son how low so-

ever. .

Son's daughter how low so-ever- The female children of lineal male descendants are known

as son's daughter how low so-ever. Thus, son's daughter, son's son's daughter, and so on, "are

also son's daughter how low so-ever.

Inheritance under Sunni (Hanafi) Law

Under any law of intestate succession, two questions that arise are:

(i) Who are the heirs of the deceased, and

(ii) To what share the heirs are entitled. Muslim law-givers have gone into details in laying

down the categories of the persons who are entitled to participate in the inheritance,

and the respective shares to which each category of heirs are entitled to receive.

Heirs- Islamic law superimposed on the customary structure certain blood relations who are

either equally near, or more near, to the deceased than the customary heirs. Among these new

heirs are certain females, and some ascendants and collaterals. The spouse of the deceased is

allowed to take a share in the inheritance, as a. relation by affinity.

The sharers are allotted their specified shares. Then whatever is left after allotting share 'to the

sharers the rest-residuary is divided among the customary heirs. These heirs are commonly

called "residuary". This term came into vogue on the assumption that after giving specified

shares to the sharers, whatever is left is given to them.

Distribution of Assets among the Sharers and Residuaries

Among the heirs the sharers (Quranic Heirs) are to be given their share first,

Then the residue is to be distributed among the residuaries.

In the absence of the sharers, the residuaries take the entire estate.

In the absence of both the sharers and the residuaries, the estate devolves on the distant

kindred.

In their absence, the estate goes to the State.

The peculiarity of the Muslim law of inheritance is that although the sharers are class I heirs

and the residuaries are class II heirs, they together share the property. After shares have been

allotted to sharers, the remaining property goes to the residuaries. Thus, if a Muslim dies

leaving behind a mother M, a Son S and a daughter's son DS, then M as sharer will

take 1/6 and S will take the remaining 5/6 as residuary. DS will be totally excluded from the

inheritance, since he is distant kindred. There is only one case when a distant kindred inherits

along with a sharer, viz., when the sharer is a husband or wife and there is neither any other

sharer nor a residuary, then the distant kindred inherits along with the husband or the wife.

Thus, if a Muslim dies leaving behind a widow W, and full sister's son FSS (who is distant

kindred), then W will take 1/4 as sharer, and the residue of the estate, namely, the 3/4 will go

to FSS.

It is suggested to go through class notes also.

To be continued...........!