muslim law of succession

8/22/2019 muslim law of succession

1/27

CHANAKYA NATIONAL LAW

UNIVERSITYA Project On

Critical study between Hanafi

& Shia Law as to Succession

Made By: Nidhi Navneet

2nd

year (4th

sem)

ROLL No.570

B.A.LL.B. (Hons)

SUBMITTED TO: - Mr. Shaiwal Satyarthy

FACULTY: - Famili Law II


2/27

Critical Study between Hanafi & Shia Law as to Succession

1

ACKNOWLEDGEMENT

I am feeling highly elated to work on the case law Critical Study

between Hanafi and Shia Law as to Succession under the guidance of the Faculty of

Family law II, Mr. Shaiwal Satyarthy. I am very grateful to him for his exemplary

guidance. I would like to enlighten my readers regarding this topic and I hope I have

tried my best to pave the way for bringing more luminosity to this topic.

I also want to thank all of my friends, without whose cooperation this

project was not possible. Apart from all these, I want to give special thanks to the

librarian of my university who made every relevant materials regarding to my topic

available to me at the time of my busy research work and gave me assistance. And at

last I am very much obliged to the God who provided me the potential for the

rigorous research work.

At finally yet importantly I would like to thank my parents for the

financial support.

-----------

Thanking you

Nidhi Navneet

C.N.L.U.


3/27


2

CONTENTSRESEARCH METHODOLOGY ........................................................................................3

INTRODUCTION ...............................................................................................................4

GENERAL PRINCIPLES OF SUCCESSION ....................................................................6

Customary Principles of Succession ................................................................................6

Islamic Principles of Succession ......................................................................................6

The Hanafi Law: General Principles ...........................................................................7

Ithana Asharia Law: General Principles ......................................................................8

HANAFI LAW OF SUCCESSION .....................................................................................9

1. Heirs under Hanafi (Sunni) Law ...............................................................................9

2. Distribution of Assets among the Sharers and Residuaries .................................... 11

3. Residuaries: Distribution ofAssets ......................................................................... 13

4. Distribution of Assets among the Distant Kindred ................................................. 14

5. Doctrines of Aul(increases) andRadd(return) ...................................................... 15

SHIA LAW OF SUCCESSION ........................................................................................ 16

The Shia Scheme of Heirs .............................................................................................. 16

Distribution of Assets ................................................................................................ 17

1. Distribution of Assets among Class I heirs: ............................................................... 18

2. Distribution of Assets among Class II heirs:.............................................................. 19

3. Distribution of Assets among Class III Heirs: ........................................................... 20

4. Rules of Distribution of Assets among the Uncles and Aunts: .................................. 21

5. Distribution of Assets among the descendants of Uncles and Aunts: ........................ 21

6.Doctrines of Aul (increase) and Radd (return): .......................................................... 21

DISTINCT RULES OF SUCCESSION UNDER SHIA AND SUNNI LAWS ................ 22

Sunni and Shia interpretation of Koran- distinction between : ...................................... 23

Points of difference between Sunni and Shia Law as to succession .............................. 23

CONCLUSION .................................................................................................................. 25

BIBLIOGRAPHY .............................................................................................................. 26


4/27


3

RESEARCH METHODOLOGY

Research Methodology

The project is basically based on the doctrinal method of research as no field work isdone on this topic.

Aims & Objectives

To do an in depth analysis of the relation between the two branches of Muslim Law on

the law of succession of the property. The different rules regarding the heirs upon whom

the property is about to devolve and the different rules regarding the distribution of

property among those heirs in both Hanafi i.e., Sunni and Shia Law are to be ascertainedthrough this project work.

Sources of Data

The whole project is made with the use of secondary source. The following secondary

sources of data have been used in the project-

1. Books2. Websites

Mode of Citation

The researcher has followed a uniform mode of citation throughout the course of this

research paper.

Type of Study

For this topic, the researcher has opted for Descriptive and Explanatory type of study as

in this topic, the researcher is providing the descriptions of the existing facts.


5/27


4

INTRODUCTION

The law of succession in India falls within the realm of personal law. Due to

this, we have so many different succession laws, each purporting to reflect the diverse

and differing aspirations, customs, and mores of the community to which the statute in

question applies, for ex. the Hindu Succession Act, the Parsi Succession Act, etc.

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

streams, the Shia law of succession and the Hanafi 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 Sharia't Laws (Application) Act. The primary source of the

Muslim law of succession flows from the Holy Koran. Apart from those issues which are

directly addressed in the Holy Book, there are the Ijmas, the Sunnas, and the Qiyas, from

all of which rules pertaining to succession can be gleaned. Also, it is pertinent to note

here that laws of Succession under Muslim Law are said to be derived from the customs

and usages prevalent among the tribes of Arabia before the revelations of the Quran, as

supplemented and modified by the Koranic principles and the Hadis of the prophet.

Contrary to popular belief, Koranic revelations are not the starting point of Muslim Law.

It was in existence even prior to that, but it was systematized, concretised and modified

by the revelations and the traditions of the prophet.1

The Muslim law of Succession is a superstructure constructed on the

foundation of pre-Islamic customary law of succession. It is based on the patriarchal

organisation of the family, in which the buttressed some near cognates side by side with

agnates. 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. The twin doctrines of the Mitakshara school of Hindu law, viz., sons birth right

and survivorship (now abolished) are not recognised in muslim law.2 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.

1

Dr. Poonam Pradhan Saxena, Family Law Lectures II, (3rd

ed), Lexis Nexis Butterworths Wadhwa atpage 505.2

Abdul Rashid v. Sirajuddin, 1933 All 206.


6/27


5

The Muslim law of Succession is a unique aspect of Muslim Law. It is a

different system of law. Prophet Mohammed said: Learn the laws of succession and

teach them to the people; for they are one-half of useful knowledge.3 About the Muslim

law of succession, Tayabji observed: the Muslim Law of succession has always been

admired for its completeness as well as the success with which it has achieved the

ambitious aim of providing not merely selection for the single individual or a

homogenous group of individual, on whom the estate of deceased should devolve by

universal succession, but for adjusting the competitive claim of all the nearest relations. 4

Under Hindu law, the doctrine of representation is utilized for two purposes:

(i) for determining the heirs, and (ii) for determining the quantum of share of an heir or a

group of heirs. Theper stripes rule means that where there are branches, the division of

property takes place according to the stock, i.e., at the, places where branches bifurcate.

Under the Hanafi law, no aspect of the doctrine of representation is recognized, with the

result that the son will take the entire property and no grandson will take any share. The

result under the Shia law is also the same. But the Shia law recognized the doctrine of

representation for the second purpose, i.e., for determining quantum of shares in certain

cases. For instance, if P dies leaving behind three grandsons, A, B and C from a son S,

and two grandsons, X and Y from a predeceased son S1, and a grandson Q from apredeceased son S2, then the distribution of assets will take place not in accordance with

grandsons, but in accordance with sons. In this example, the share of S, S1 and S2 will

come to1/3 each. S's 1/3 will go to A, B and C each taking 1/9; S1's 1/3 will go to X and

Y each taking 1/6 and S2's 1/3 will go to Q. Under the Hanafi law each grandson will

take per capita, i.e., A, B, C, X, Y and Q, each will take 1/6 share in the assets. The

doctrine of representation and the striptal succession for the purpose of calculating the

shares of certain heirs is the basic principle of the Shia law and is applied throughout.

This is not confined to descendants but is also applied to ascendants. Thus, the

descendants for the deceased son, deceased uncle, deceased aunt, deceased daughter,

deceased brother, deceased sister, if they are heirs, are all covered by the doctrine of

representation.

3Sirajyyah (2

nded). 11.

4Tayabji (4

thed), 800.


7/27


6

GENERAL PRINCIPLES OF SUCCESSION

The general principles of Succession can be broadly divided in Customary

Principles which are age old principles based on customs followed by the Arabs even

prior to the revelations of Quran, and in Islamic Principles which are the newer laws

based on the Quranic principles. The general principles can again be divided into the

general principles of the two branches of Muslim Law, i.e., Shia and Sunni Laws

represented by the Ithna Asharai Sect of Shia and Hanafi Sect of Sunni laws.

Customary Principles of Succession

In the pre-Islamic Arabia, the law of Succession was based on, what is

called, comradeship-in-arms, and, on this basis, even the wife and the children were

excluded from Succession. The four basic principles of the pre-Islamic law of succession

were: firstly 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 Succession; 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 aforesaidprinciples of customary law of succession.Firstly, 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


8/27


7

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.

The Qurandid not create a new structure of law of succession, but merely

amended and modified the customary law of succession so as to bring it in conformity

with the Islamic philosophy which recognised those persons who were not heirs under the

customary law as heirs (called sharers or the Koranic heirs) and specific shares have been

allotted to them. For instance, if A, a Muslim, dies leaving behind a widow, W and two

sons S and S1, then W will take 1/8 as a specified share and S and SI will take the

residue, i.e., 7/8.

The Hanafi Law: General Principles

The Hanafis interpret the principles of customary law and Islamic law in such

a manner as to blend them together in a harmonious manner; the customary heirs are not

deprived of their right of Succession in the estate of the deceased, but only a portion out

of the estate is taken out and given to the heirs enumerated in the Koran. This means that

the basic structure of customary succession, the rule of agnatic preference over cognates,

is retained. The Koranic succession takes the agnatic principles further by recognizing the

right of female agnates. Thus, a female agnate (as specified -in the Koran) near to a male

agnate (as specified under the customary law), is allowed to take a share, and thereby,

doesnt deprive a male agnate of his share and he gets the residue. It should also be

noticed that most of the newly created heirs are the near blood relations of the deceased

who were ignored in the customary law.

On examining the rights of the Koranic heirs vis-a-vis the customary heirs,

two situations came in view: (i) the Koranic heir may be nearer to the customary heir. In

such a case a specified portion of the estate is given to the Koranic heir at the first

instance and then whatever is left to be given to the customary heir. For instance, when a

deceased has left a daughter and a brother, the former will take 1/2 and the brother will

take the residue which is 1/2. If the deceased had left two daughters and a brother, then,

the daughters together will take 2/3 and the brother will take the residue which is 1/3.

(ii) The Koranic heirs and the customary heirs may be equally near to the

deceased. In such a case double portion is given to the customary heir. In this situation


9/27


8

the Koranic heir who is a female of equal proximity with the customary heir, but was

disqualified under the customary law been made to rank equally with the customary heirs

in respect of the residue of the estate after the prior claim of the Koranic heirs are

satisfied. As to the rights of heirs vis-a-vis each other, if the heirs of the same class differ

from each other in their sex, they inherit equally and the principle of male taking twice

the share of a female does not apply. For instance, if a Muslim dies leaving behind father

and mother, then each take 1/6 of the estate.

The modifications thus made by the Koran as interpreted by the Hanafis are

restricted to agnates, with a few exceptions where under some cognates, such as uterine

brother and uterine sister, are also included. The Hanafis have so interpreted the Koranic

rules that the customary heirs right to Succession is not affected, though a slice of the

estate is taken away for the Koranic heirs. Sometimes the customary heirs are also

required to share the residuary estate with the Koranic heirs, and in that process,

sometimes, no residue of the estate is left for them. Under the Hanafi law, the general rule

of distribution of the estate is per capita and not per stripes.

Ithana Asharia Law: General Principles

The basic differences between the Ithana Ashari law and the Hanafi law arise

on account of the fact that the latter interpret the Koranic rules strictly and hold that the

Koranic rules are nothing but transposition of certain rules on the customary law of

succession, while the former interpret the Koranic rules so widely as if they lay down an

independent scheme of succession. Thus, the Ithana Ashari interpretation ofthe Koranic

rules does not recognize the prior rights of agnates over cognates or of males over

females. With the exception of the rights of husband and wife, the Shia law lays down

that the estate of the deceased devolves on blood relations equally, though among

themselves they take per stripe: the females are allotted half the share allotted to the

males in each grade. This also results in descendants, ascendants and collaterals

inheriting side by side. The Shia law recognises the concept of Doctrine of

Representation not for determination of heirs but for determination of shares of each

heirs. When the sons of a predeceased son are about to inherit the property they will get

as per capita from whatever share their father is to get if he been alive through

representing their deceased father as one of the heir of property.


10/27


9

HANAFI LAW OF SUCCESSION

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 Succession, and the respective shares to which each category of heirs

are entitled to receive.

1. Heirs under Hanafi (Sunni) LawUnder Sunni law, the Heirs are divided into two broad categories, i.e., Related

heirs and Unrelated heirs. Related heirs are further sub divided into three groups viz.,

Sharers, Residuaries and Distant Kindred, that comprise only blood relatives with the

exception of surviving spouse of the deceased. The second category of unrelated heirs

comprises three heirs viz., successor by contract (gets the property under a contract),

acknowledged kinsmen (person of unknown descent, but the deceased makes an

acknowledgement of kinship in his favour) and universal legate (recipient of the whole

property of the deceased by will).

The property in the first instance is to be distributed among those sharers who

are entitled to get the property. Sharers are the heirs who were earlier excluded but were

introduced as heirs by Koranic revelations. Their shares are fixed. Among the heirs, the

Sharers are to be given their share first, and 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 (as an heir by Escheat). The rule has

one exception, viz., in absence of the residuaries, if either of the spouses is present i.e.,

widow or the widower, then the spouse will take his/her fixed share as a sharer and the

rest of the property would be taken by the Distant kindred.

The Sharers are twelve in number. They may be stated thus:

Relations by affinity or marriageincludes wife and husband. Relations by blood

a. Female agnetic descendants includes daughter, sons daughter, how lowso ever.


11/27


10

b. Female agnetic collateralsincludes full sister and consanguine sister.c. Cognatic collateralsincludes uterine brothers and uterine sisters.d. Female ascendantsincludes mother and true grandmother.e. Male ascendantsincludes father and true grandfather.

Daughter, sons daughter, sons sons daughter, full sister and consanguine

sister, although being among the sharers do not take their specified shares if a residuary

equal rank co-exists, and thus they become residuaries and are known as Koranic

Residuaries with another. The Residuaries are classified into: (i) descendants, [son and

sons son, how low so ever] (ii) Ascendants [father and true grandfather] and (iii)

collaterals which are descendants of father [full brother, full sister, consanguine brother

or sister, full brothers son or sons son, consanguine brother son or sons son] and that of

a true grandfather [full or consanguine paternal uncles, full or consanguine paternal

uncles son or sons son].5

Distant kindred are all those blood relations ofthe 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. For the purpose ofdistribution ofassets among

them, the better classification ofdistant kindred would be into: (i) descendents, (ii)

ascendants, and (iii) collaterals. Under the category of descendants, daughter's children

and their descendants how low so ever; son's daughter's children, how low so ever and

their descendants without any limit are included. Under the category of Ascendants, false

grandfather and grandmother how high so ever are to be included. The collaterals are

further divided into descendants ofparents [including full and consanguine brother's

daughters and uterine brother's children; daughters offull brother's and consanguine

brothers sons, and children ofsisters (full consanguine and uterine)] and

descendants ofimmediate grandparents [including full and consanguine paternal uncle's

daughters, daughters of their sons, uterine paternal uncles and their (of all of the above)

children; paternal aunts (full, consanguine oruterine), Maternal uncle and Aunts and their

children]. The number ofcollaterals is limitless, all the descendants ofall the ascendants,

without any limit as to degrees, are included.

5Paras Diwan, Muslim Law in India, Allahabad law agency, at page 223-24.


12/27


11

2. Distribution of Assets among the Sharers and ResiduariesThe peculiarity of the Muslim law of Succession 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 mother as sharer will take 1/6 and S will take the remaining 5/6 as residuary. DS will

be totally excluded from the Succession, since he is a distant kindred.

Among the heirs of a class which one of them will take the estate, and in what

portion, depends upon the circumstances of each case. The general rule of preference is

that a nearer heir excludes a remoter one. Thus, if a Muslim dies leaving a son and a

grandson (son's son or a son from a predeceased son), then son alone will inherit, and the

grandson will be excluded, though both are Residuaries. Among the residuaries the

descendants are preferred over ascendants and collaterals, and ascendants are preferred

over collaterals. When all the heirs claiming property are equally near, they share equally

with this rider that a male heir (generally) takes double the portion of a female heir.

In the Hanafi scheme of Succession, the following five heirs are always

entitled, to a share in the estate; namely, husband, wife, child, father and mother. These

heirs are called primary heirs. Next to them are "substitutes". There are the substitutes of

the last three primary heirs only which are child of a son, how low so ever, true

grandfather, and true grandmother.

Husband and Wife: If a Muslim male dies leaving behind a widow and children, then

the widow takes 1/8, and the residue (i.e., 7/8) goes to children but in absence of children

she takes 1/4. In case of more than one widow, each will get equal. Similarly, if a Muslim

female dies leaving behind her husband and children, then the husband takes 3/4 as a

sharer and the residue of 1/4 goes to the children and in absence of children, he gets .

Thus, a Muslim female dies leaving behind her husband, H and her father F. H will take

1/2 as a sharer and F will take the remaining 1/2 as residuary.

Father and True Grandfather: The father is always an heir. Under no circumstances

can he be excluded from Succession. The true grandfather, being a substitute; is always

excluded by the father. The Kuran had devolved 1/6 share for father when there are

children of deceased, and in absence of children or any agnatic descendants, the


13/27


12

grandfather takes as a residuary. Where a Muslim dies leaving behind a mother and a

father, the mother takes 1/3 as sharer, and the father takes 2/3 as residuary. Dual capacity

i.e., as a sharer and a residuary, is sometimes conferred to father and he takes in the

capacity of both. In this situation the position of the grandfather (in the absence of the

father) will be the same, since he is a substitute for father.

Illustration: P, a Muslim dies leaving behind father F, a grandfather FF, a mother, M, a

grandmother MM, two daughters D and D1, and a daughter of a predeceased son, SD. FF

will be excluded by F and MM will be excluded by M. F will take 1/6, since there are no

children of the deceased. M will take 1/6, for the same reason. In the presence of

daughters, SD will not take any share. The remaining 2/3 will go to D and D1, between

them they will share equally, i.e., 1/3 each.

Mother and True Grandmother: Mother is never excluded from Succession. She takes

1/3 where there are no children, and 1/6 in presence of the children. The true grandmother

is to be excluded completely in the presence of mother, nearer maternal or paternal grand

mother, father and nearer true grandfather. Illustration: P dies leaving behind his mother

M, sons son, S and a daughter D. M will take 1/6 as sharer, and the rest will go to D, S

and S1 as residuaries, where D will have 1/6, S will have 2/6 and S1 will have 2/6. The

mother takes 1/6 share if a Muslim dies leaving behind two sisters, or one brother and a

sister (full, consanguine or uterine). Illustration: P dies leaving behind his mother, M, a

sister PD and father F: Mother will take 1/3; D will be excluded because of the father as

sisters dont take shares in property in presence of father. F will take the remaining 2/3.

Daughter and Son's Daughter how low so ever: The daughter takes a share of of

the property (for more than one daughter, each gets 2/3) in the estate of the deceased

parent, when there is no son and otherwise becomes a residuary. The son's daughter

having of the property as share (2/3 for more than one daughter) is excluded

completely in presence of a son, more than one daughter or higher sons son and the share

reduces to 1/8 when there is only one daughter or one higher sons daughter. She

becomes a residuary when there is an equal sons son. The son's daughters take per

capitaand not per stripes. Under the Hanafi law the son's daughter inherits in her own

right, and not as representative of the son.

Sisters: The sister is a sharer where one takes 1/2 share and more than that take 2/3 each.

But, she becomes a residuary in presence of a full brother and she is to be entirely


14/27


13

excluded when there is a son, sons son, how low so ever, father or a t rue grandfather.

When there are more than one full sister, consanguine sister is excluded but in case of

only one sister, then consanguine sister takes 1/6. A consanguine sister having same

shares is excluded in the presence of a son, sons son, how low so ever, father or a true

grandfather, full brother and more than one full sister.

Illustration : P dies leaving behind a husband, H and a sister FD. H will take and FD

will take . P dies leaving behind a full sister, FD, three consanguine sisters, CSl, CS2,

CS3, one uterine sister US, one uterine brother UB. FD will take one-half, CS1, CS2,

CS3 will take 1/6, each taking 1/18. UB and US together will take 1/3 each taking 1/6.

In the case Newanesse v. Sheikh6, a widow died leaving behind a full sister and two

daughters. The Supreme Court held that each daughter would take 1/3 and the remaining

1/3 will go to sister.

Uterine Brother and Uterine Sister: The uterine brother and uterine sister are not

primary heirs. They inherit only in certain circumstances. (a) The uterine brother and

uterine sister are excluded by a child, son of a child how low so ever, father, true

grandfather. (b) A full brother or a full sister does not exclude a uterine brother or a

uterine sister. Whenever the uterine brother and sister inherit they take equal share; therule of male taking double portion does not apply to them. (d), Uterine brother and

uterine sister take 1/6 share. Where there are more than one uterine brother or uterine

sister they together take 1/3, and between them share it equally. Illustration: There is one

interesting case, the Himariyya,where a Muslim female, died leaving behind her

husband, H, mother, M, two uterine brothers, UB, UBI and one full brother, PS, H took

1/2, M took 1/6, UB and UBI took 1/3. But then the entire estate was exhausted, and

nothing was left for FS, the full brother. In this case full brother would have taken as a

residuary, had some residue been left.

3. Residuaries: Distribution ofAssetsThe Residuaries inherit the property when the shares of sharers had been given to

them. Only the Koranic residuaries can inherit in double capacity, i.e., either as sharers or

as residuaries. The females enlisted in Koranic residuaries succeed as residuaries when

they co-exist with male heirs of equal proximity. For instance, the daughter inherits as a

6AIR 1996 SC 702.


15/27


14

sharer when there is no son. When there is a son, she inherits as a residuary. Except the

son's daughter how low so ever, no one of these females can, as residuary, succeed with a

male of lower grade. For example, when a Muslim dies leaving behind two daughters, D

and D1, a son's son's son, SSS, son's daughter, SO, and son's son's daughter SSD, then D

and D1 together will take 2/3 as sharers, SSS 1/6 as residuary, SD 1/12 as residuary, SSO

1/12 as Residuary.

Further illustrations are: (i) P dies leaving behind daughter, D, son's daughter, SD, son's

son's daughter, SSD, and son's son's son, SSS. D will take 1/2 as sharer, SD will take 1/6

as sharer, SSS and SSD will take the remaining as residuaries, SSD taking 1/9 and SSS

taking 2/9. (ii) P, a Muslim, dies leaving behind two daughters, D and D1, a son's

daughter, SD, and son's son's son, SSS. D and D1 together will take 2/3, as sharer, and

the remaining will go to SD, SSS as residuaries, SSS taking 2/3 and SD taking 1/9 (in

accordance with the rule that male takes double portion).

4. Distribution of Assets among the Distant KindredThe distant kindred succeed tothe estate ofthe deceased only in the

absence ofthe sharers and residuaries with one exception, viz., when husband orwife is

the sole heir, then the distant kindred take the residue. 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.

Among the distant kindred, the rules ofdistribution of assets and ofexclusion

may be stated thus:

(1) When among the claimants there are descendants, ascendants and

collaterals, the descendant distant kindreds are preferred over ascendant distant kindred

and collateral distant kindreds. When the claimant distant kindreds are ascendants and

collaterals, then ascendant are preferred.

(2) When all claimants are descendants, (a) of different degrees, then the one

who has fewer degrees of descent will be preferred. (b) If all of them have equal degrees

of descent, then the children of sharers and residuaries are preferred over the children of

distant kindred. (c) If the claimants have the degrees of descent and the sexes of

intermediate ancestors do not differ, then all the claimants take per capita, male taking

double portion. Thus, if P dies leaving behind daughter's daughter, DD, and daughter's


16/27


15

son, DS, DD will take 1/3 and DS will take 2/3. But, (e) if the intermediate ancestors

differ in their sexes, then (i) where sexes differ, the shares were to be assigned at that

stage in case of two claimants, assigning double portion to male and one portion to

female ancestor. (ii) Where there are three or more claimants and each is claiming

through a different line of ancestors, then shares were to be allotted where sexes starts

differing.

Illustration: P dies leaving behind a daughter's son's daughter, DSD, a daughter's

daughter's daughter, DDD, and a daughter's daughter's son, DDS, Since the sex of the

ancestors differ at the second line of descent, the shares are to be allotted here, male

getting double portion and female getting one portion. DS will get 1/2, DD will get 1/4

and DD1 will get 1/4. Since there are two females, their shares will be pooled together

which will come to 1/2. Since in the line DS there is only one heir, his 1/2 will go to

DSD. DD and DDI'S 1/2 will go to DDS and DDD, the male taking the double portion.

This will mean that DDS will take 1/3 and DDD will take 1/6.

(3) Where there are two or more claimants claiming through the same

intermediate ancestor, the rule is to count each of such ancestors if male, as many males

as there are claimants claiming through him and, .if female, as many females as there are

claimants claiming through her, irrespective of the sexes of the claimants. When an

intestate leaves descendants in the fourth or remoter generations, this process is to be

applied as often as there may be occasions to group of the sexes of intermediate

ancestors.

5. Doctrines of Aul(increases) and Radd(return)In a system of law which assigns fixed shares to heirs, two anomalous situations are

likely to arise: The sum of shares allotted to various heirs according to their entitlement,

(i) may be in access of the unity, or (ii) may be less than the unity. The former situation is

solved by the application of the doctrine of Aulor increase, and the latter by the

application of the doctrine ofRaddor return.

Doctrine of Aul or increaseWhen the sum total of the shares allotted to various heirs

in accordance with their entitlement exceeds the unity, then the doctrine of aul laysdown

that the share of each heir should be proportionately reduced. This is done by reducing

the fractional shares to be common denominator. Since this is done by increasing the

denominator, the doctrine has been given the name of increase (aul) though in fact the


17/27


16

shares are proportionately reduced. Illustration: P dies leaving behind her Husband, H,

two full sisters, FD and FDl, and Mother M, they will be allotted the shares as under: H -

or3/6, FD & FD1 - 2/3 or4/6and M - l/6. The proportionate reduction of shares is

achieved by increasing the denominator from 6 to 8. Thus, the shares of the respective

shares will be : H will take 3/8, FD & FD1 4/8 and M 1/8.

Doctrine of Radd or return: When there is surplus left after allotting the shares to the

sharers in accordance with their entitlement, and there are no residuaries to take the

surplus, then the doctrine ofreturn lays down that the surplusis to be distributed among

the sharers in proportion to their respective shares. Under Muslim law ofmodern India,

the doctrine ofreturn lays down: (i) the surplus is distributed among the sharers in

proportion to their shares. (ii) But the husband orthe wife is not entitled to return, solong

as there is a sharer ordistant kindred alive and ifthere is no sharer ora distant kindred,

then the surplus returns to the wife orhusband. Illustration: P dies leaving behind his

mother M, and his daughter D. M takes 1/6and D takes 1/2.There remains a surplus of

1/3. Since there is no residuary, 1/3 will return to D and M. M's share will be increased to

1/4and D's share to 3/4. This is done by reducing the common denominator.

SHIA LAW OF SUCCESSION

The shia law of Succession differs fundamentally from the sunni law. The

Hanafis considered the super-imposition of the Koranic Heirs on the agnatic system of

succession of the customary law as supplementary to, and in modification of, the

customary law of succession or as Fyzee puts it, as corrective of many social and

economic inequalities that prevailed then,7 and, therefore, held the view that two are to be

read read together in one harmonious scheme. The Ithna Asharis, on the other hand,

considered the Koranic scheme of succession as anew scheme and in suppression of the

customary law of succession.

The Shia Scheme of Heirs

The shias base the right of succession to the propertyon two principles: (a)

Nasab, or blood relationship, and (b) Sadab, or special cause. The Nasab is sub-divided

into: (i) Dhu Fard (the Koranic Heirs or Sharers), and (ii) dhu qarabat, or blood relations.

The Sadab is also sub-divided into two: (i) zawjiyyat or status of a spouse, and (ii) wala,7

Fyzee, 381.


18/27


17

special legal relationship. Under wala comes right on emancipation, onligation for delicts

committed by the deceased, and wala of immanate. Of these first two have become

obsolete in India and the third has been replaced by the law of escheat.

Classification of heirs:

In modern India, the heirs of a Shia muslim fall under the following classes:

I. heirs by marriage. Under this category come only to persons husband and wife.

II. heirs by consanguinity. These are further sub-divided into the following-

a. (i). Parents, (ii). Children and other lineal descendants, how low so ever.

b. (i). Grandparents (both true and false) how high so ever. (ii) Brothers and sisters and

their descendants , how low so ever.

c. (i). Paternal uncles and aunts of the deceased, and of parents nd grandparents how high

so ever and their descendants, how low so ever.

III. State by Escheat.

From the point of view of distribution of assets, the Shia law divides the heirs

into two categories: (i) the sharers and the descendants of the sharers, how low soever;

(ii) the residuaries and the descendants of the residuaries how low so ever.

The Shia law does not recognises distant kindred as a separate class of heirs.

All those blood relations who are not sharers are the residuaries.

Distribution of Assets

It should be noted that under the Shia law all sharers are not Class I heirs.

They are called sharers, since the Koran allots them a specified share. All sharers do not

have priority over the residuaries. It should also be noted that the husband and wife

always inherit, and inherit with all classes of heirs.

Besides the husband/wife, the heirs for the purpose of determining priority,

are placed into three classes:


19/27


18

I. (i). Parents, and (ii) Children and other lineal descendants how low so ever: among

them the nearer excludes the remoter. Thus, son and daughter excludes sons and

daughters children.

II. (i) Grandparents (both true and false) how high so ever, among them the nearer

excludes remoter, and (ii) Brothers and sisters (among them brothers and sisters of full

blood are preferred over consanguine ones), and failing them, their descendants , how

low so ever, nearer excluding the remoter.

III. (i). Paternal uncles and aunts of the deceased, and of his or her parents and

grandparents how high so ever and their descendants, how low so ever, and (ii) Maternal

Uncles and Aunts of the deceased, and his or her parents and grandparents how high so

ever and their descendants, how low so ever.

1. Distribution of Assets among Class I heirs:

In this class are two groups of heirs, parents and children and their lineal descendants.

Here all the shares are defined by the Koran.

Husbandhusband takes of the property and it reduces to where there is a lineal

descendant.

Wife wife takes of the property but it reduces to 1/8 where there are lineal

descendant.

Fatherfather takes 1/6 share, if there is a lineal descendant. If there is none, he takes as

a residuary.

Mothermother takes 1/6 when there is: (a) lineal descendant, or (b) two or more full or

consanguine brothers, or (c) one such brother and two such sisters, or (d) four such sisters

with the father. If there are no such relations she takes 1/3.

Daughterwhen there is no son, she takes 1/2; when there are two or more they together

take 2/3, provided there is no son. If there is a son, then she takes as residuary along with

him.

Son - Son is always a residuary.

Grandchildrenin the absence of children, grandchildren tke the share which the son ordaughter would have taken had he or she been alive. This means: (i) children of each son


20/27


19

will take the share which the son would have taken as residuary; the children among

themselves will divide it on the basis of the rule of double portion to the male child and

one portion to the female child; (ii) children of each daughter will take the same share

which the daughter would have taken if living, either as a share or as a residuary, and will

divide it among themselves on the basis of the rule of double portion for a male and one

portion for a female.

The distribution of assets among the Class I heirs may be explained by a few examples: P

dies leaving behind her husband, H, father F, and mother, M. H will take as sharer, M

will take /3 as sharer F will take remaining 1/6 as residuary. Another example, P dies

leaving behind two daughters D and D1, father F and Mother M. F will take 1/6 as sharer

(because of daughters), M will take 1/6 as share and D & D1 will take 2/3 as sharer.

2. Distribution of Assets among Class II heirs:

In the absence of class I heirs, the property devolves on class II heirs along

with husband or wife, if any. Among them, the following three situations are likely to

arise:

1. The claimants may be only grandparents, how high so ever and no other

relative is there. In such a situation, when all the four grandparents are there, the paternalgrandparents will take 2/3 and maternal grandparents will take 1/3. The paternal

grandparents divide the 2/3 between themselves on the basis of double portion to males,

but maternal grandparents divide it equally between themselves. If there is only one

grandparent either at paternal side or maternal side, he or she will take the entire 2/3 or

1/3 of property. If there are two grandparents on one side and one at another side, they

will take their respective shares.

Illustration: P dies leaving behind, a paternal grandfather FF, paternal grandmother FM

and a paternal grandmother MM. The respective shares of M and F will be 1/3 and 2/3.

MM will take this 2/3, since she is the only heir. But Fs 5/8 will go to FM and FF, FM

taking 2/9 and FF taking 4/9.

2. The claimants may be only brothers and sisters, i.e., there may not be any

grandparents. In such a situation, the rules of distribution are: (a) One uterine brother or

sister takes 1/6 share, while two or more take 1/3 share. (b) In the absence of full brother,

the full sister takes as sharer, when there is only one, she takes and when there are two


21/27


20

or more then take 2/3 each. When there is a full brother, she takes as residuary along with

him. (c) in the absence of the consanguine brother, the consanguine sister takes as sharer,

taking share when one, and 2/3 when two or more, if there is a consanguine sister takes

as sharer, taking share when one, and 2/3 when two or more, if there is a consanguine

brother, then she takes as residuary along with him.

Illustration: P fies leaving behind a uterine brother, MS, a consanguine brother, FS, a

consanguine sister, FD and a widow, W. W will take as a sharer, MS will take 1/6 as

sharer, the residue will go to FD and FS, FD taking 7/36 and FS taking 7/16.

3. Where there are grandparents with brothers and sisters or their descendants,

after taking out the shares of husband or wife, if any, the distribution of property will take

place as per these rules: (a) A maternal grandfather or grandmother counts for uterine

brother or sister respectively. (b) A paternal grandfather or grandmother counts for full or

consanguine brother or sister respectively. (c) if there are no grandparents, remoter

grandparents would take their place. (d) if there are no brother or sister, their descendants

would take their place.

Illustration: P dies leaving behind a paternal grandfather, FF, and two full sisters, FD

and FD1. FF will be equal to a full brother. In view of this, FF will take 2/3 and FD andFD1 together will take 1/3.

3. Distribution of Assets among Class III Heirs:

In the absence of heirs of Class I and Class II, the assets of the deceased, after

taking out the share of Husband or Wife, will devolve on Class III. The Class III heirs

may be divided into the following categories in accordance with their priority:

(i) Paternal and maternal uncles and aunts of the deceased,

(ii) The descendants of (i) how low so ever, the nearer in degree excluding the remoter,

(iii) Paternal and maternal uncles and aunts of the parents,

(iv) The descendants of (iii) how low so ever, the nearer in degree excluding the remoter,

(v) Paternal and maternal uncles and aunts of the grandparents,

(vi) The descendants of (iii) how low so ever, the nearer in degree excluding the remoter,

(vii) Remoter uncles and aunts and their descendants in like order.


22/27


21

To the above order of succession one exception is recognized, viz., when only claimants

are full paternal uncles son and a consanguine paternal uncle, the former excludes latter.

4. Rules of Distribution of Assets among the Uncles and Aunts:

The rules are: (i) if there is a husband or wife, then he or she is to be assigned

the Koranic share. (ii) where there co-exist paternal uncles and aunts as well as maternal

uncles and aunts, then paternal side is to be assigned 2/3 share and maternal side is to be

assigned 1/3 irrespective of the number of uncles and aunts. (iii) the portion falling on the

paternal side is to be divided among aunts and uncles if they are brothers and sisters of

the deceased. (iv) the 1/3 portion falling to the share of maternal uncles and aunts will be

divided among them. (v) in the absence of one side, the other would take the whole

property.

5. Distribution of Assets among the descendants of Uncles and Aunts:

In the absence of uncles and aunts, the property devolves on their

descendants. In the distribution of assets among the descendants of aunts and uncles, the

doctrine of representation applies. The rule of preference among them is that nearer

excludes the remoter. For example: P dies leaving behind a full paternal aunts daughter,

FDD and a uterine maternal uncles son and daughter, MSS and MSD. In this case the

distribution of assets will first take place at the roots. MS taking 1/6 as sharer and FD

taking remaining 5/6 as residuary. MSs 1/6 will go to MSS and MSD, between them

they will share it equally. FDs 5/6 will go to his daughter FDD.

6. Doctrines of Aul (increase) and Radd (return):The same anomalous situations relating to distribution of assets among the

heirs are likely to arise under the Shia law as they are likely to arise under Sunni law, i.e.,

the sum total of shares being less than the unity or more than the unity, the problem ofrateable distribution or the distribution of balance among the heirs arises. The Shias, like

the Sunnis solve the problem of excess by the application of the Doctrine of Radd, though

in the actual application of the doctrine there are some differences.

The Shias do not recognize the Doctrine of Aul or Increase. In case the sum

total of shares exceed the unity, as per their rule, the fraction in access is to be deducted

from the shares of daughters and full or consanguine sisters. The reason given behind this


23/27


22

is that by doctrine of return, when the total shares are less than unity, the entire residue

goes to them, so when the shares exceeds, they should suffer the loss.

Doctrine of Returnif after the distribution of assets among the shares, some residue is

left and there are no residuaries to take it, then the balance is distributed among the shares

in proportion to their shares. But, the doctrine of return uner the Shia law is subject to the

following exceptions:

(i) if there are other heirs, howsoever remote, the husband or the wife is not

entitled to the return. (ii) if an intestate Shia dies leaving behind : (a) mother, father and

one daughter, as well as (b) two or more full or consanguine brothers, or one such brother

and two such sisters or four sisters, then the mother is not entitled to a share in the return.

(iii) in case a Shia dies leaving behind uterine brothers and sisters as well as full sisters,

then the uterine brothers and sisters are not entitled to the return. But this exception does

not apply if the uterine brothers and sisters co-exist with consanguine brothrs and sisters.

In such a case all of them share proportionately in the balance. 8

DISTINCT RULES OF SUCCESSION UNDER SHIA AND SUNNI

LAWS

Laws relating to Shias and Sunnis with respect to Succession are different in

many respects. This difference is primarily due to the interpretation of the Quranic

provisions and their incorporation in the already existing system. It must be remembered

that the Quranic revelations did not abrogate the then existing customs and usages, which

provided the basic framework for laws of Succession. Quran provided their modifications

by adding to and amending then existing rules.

The sunnis kept the old framework intact, such as preference to agnates over

cognates, and superimposed the quranic principles on this old setup. The Shias on the

other hand, blended the old rules and the newly laid down rules. They revised the law

prevalent under the Arabian customs and usages, in the light of the newly laid down

principles and came out with a scheme widely different from the one propounded by the

Sunnis.

8There is a conflict of opinion among the Shia authorities in this regard. The Sharya-ul-Islam holds that

consanguine sister is not entitled to return, while Kafi is of the opinion that she is.


24/27


23

Sunni and Shia interpretation of Koran- distinction between :

The greater part of Mohammedan Law of Succession is founded upon the

Koran. Koran9 did not sweep away the existing laws of successions, but made a great

number of amendments based on a few common principles. These amendments havebeen differently interpreted by the Sunnis and the Shias. The leading differences in their

interpretations may be stated as follows:

The sunnis to some extent allow the principles of the pre-Islamic custom to stand,and they add or alter those rules in the specific manner mentioned in the Koran

and by the Prophet.

The Shias deduce certain principles which they consider to underlie theamendments mentioned in the Koran, and fuse these principles with the principles

underlying the pre-existing customary law, and thus raise up a completely altered

set of rules.

Points of difference between Sunni and Shia Law as to succession

1. According to sunni law, there are three classes of heirs namely sharers, residuariesand distant kindred, whereas under Shia law, there are only two classes of heirs

namely sharers and residuaries, i.e., heirs by consanguinity and heirs by marriage.

2. The sharers, according to Sunni law, exclude residuaries and residuaries excludethe distant kindred. Under Shia law, the sharers and the residuaries are all jointly

divided into three classes; the first excluding the second from Succession and the

second excluding the third.

3. The sunni law doesnot recognise any Right of Primogeniture, the shia lawrecognises it to some extent.

4. Sunni law restricts recognition of the Doctrine of Representation to a few limitedcases; in Shia Law it is the cardinal principle of succession.

5. Without exception, homicide is a bar to succession in Sunni Law, but under ShiaLawit it is a bar only if it is intentional.

9Murtaza Hussain Khan v. Mohammad Ali Khan, ILR 33 All 532 (PC).


25/27


24

6. Under the Sunni Law both husband and wife can take by return, i.e., where thereis residue. Under the Shia Law only the husband is entitled to return and not the

wife.

7. Under the Sunni Law, the doctrine of increase extends to all sharers alike, but itappliesonly to the daughter and sister among the Shias.

The Sunni Law does not interfere with the koranic sharers except those, on

the authority of the Ijmaa and the Kiyas, they introduce into the list of shares. But the

Shias kept the list of the koranic heirs intact and re-arranged is in a group divided on the

basis of the propinquinty.

The doctrine of representation is recognised by the Shias but not the Sunnis.

According to the Sunni law, all the Sharers except the husband or wife share

in the return and the husband or wife gets the residue on the total failure of other heirs.

But according to the Shias, only the husband is entitled to return.

Under the Sunni law, there is no distinction between movable and immovable

property left by the deceased. But according to Shia Law, in case a childless widow, there

is distinction between movable and immovable property. A childless widow is notpermitted to take any share in her husbands immovable property.

According to the Sunni law, if the deceased leaves behind a single daughter

and father, the residue goes to the father; but among the Shias, the residue is divided

amongst sharers by return.

Under the Sunni law a person can be excluded from inheriting if he has

caused murder of the person from whom, he is to inherit, either intentionally or

unintentionally. But according to the Shia law, such person will be disqualified only if he

has intentionally caused the murder, so under the Shia Law there is distinction between

intentional and unintentional homicide so far as the exclusion of a person from

Succession is concerned.

The classification of heirs under the Sunni law seems unnatural and artificial.

But the classification under the Shia law is more natural.


26/27


25

Under Shia law the only restriction upon testamentary power is the one-third

rule, but Sunni law goes further and does not allow any bequest in favour of a legal heir.

Under both systems, however, bequests that infringe these rules are not necessarily void

and ineffective; the testator has acted beyond his powers, but the bequest may be ratified

by his legal heirs.

Further protection is afforded to the rights of the legal heirs by the doctrine of

death sickness. Any gifts made by a dying person in contemplation of his death are

subject to precisely the same limitations as bequests, and, if they exceed these limits, will

be effective only with the consent of the legal heirs.

CONCLUSION

It can finally be concluded after taking in view the laws of succession in the

two branches of Muslim Law are different in many aspects. Although both Shia law and

Sunni law provides same kinds of rules for succession of property by the heirs but when

these rules are delat in detail, various differences are there.

There is a fundamental divergence between the Sunni and the Shia schemes

of succession. Sunni law is essentially a system of inheritance by male agnate relatives

oraabahi.e., relatives who, if they are more than one degree removed from the

deceased, trace their connection with him through male links. This agnatic system is

mitigated by allowing the surviving spouse and a limited number of females and non-

agnatesthe daughter; sons daughter; mother; grandmother; germane, consanguine, and

uterine sisters; and uterine brotherto inherit a fixed fractional portion of the estate in

suitable circumstances. But the females among these relatives only take half the share of

the male relative of the same class, degree, and blood tie, and none of them excludes frominheritance any male agnate, however remote. No other female or non-agnatic relative

has any right of inheritance in the presence of a male agnate.

Shia law rejects the criterion of the agnatic tie and regards both the maternal

and paternal connections as equally strong grounds of inheritance. In the Shia system the

surviving spouse always inherits a fixed portion, as in Sunni law, but all other relatives,

including females and non-agnates, are divided into three classes: (1) parents and lineal

descendants; (2) grandparents, brothers and sisters, and their issue; (3) uncles and aunts


27/27

Critical Study between Hanafi & Shia Law as to Successionand their issue. Any relative of class one excludes any relative of class two, who in turn

excludes any relative of class three. Within each class the nearer in degree excludes the

more remote, and the full blood excludes the half blood. While, therefore, a male relative

normally takes double the share of the corresponding female relative, females and non-

agnates are much more favourably treated than they are in Sunni law.

BIBLIOGRAPHY

Referred Books :

Saxena, Dr. Poonam Pradhan, Family Law Lectures II, 3 rd Edition, 2011, lexis Nexis

Butterworths Wadhwa.

Diwan, Paras, Muslim Law in Modern India, 9 th edition, 2004, Allahabad Law Agency,

law Publishers.

Mulla, I., Mulla on Mohammedan Law, 1st edition, 2007, Dwivedi Law Agency,

Allahabad.

Ali, Ameer, commentaries on Mohammedan Law, Revised Enlarged 5th edition, 2007,

Hind Publishing House.

muslim law of succession

Documents