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SUCCESSION Introductory :- The Muslim Law of inheritance is a superstructure constructed on the foundations of pre-Islamic customary law of succession. It is based on the patriarchal organisation of the family, in which are buttressed some neai cognates side by side with agnates. In Islamic law distinction between the family property and the separate property has never existed, and in India Muslim law did not recognize the joint family property, though among the South Indian Muslims having matrilineal system, the institution of tarwad‟ is recognised. The twin doctrines of the Mitakshara school of Hindu law, viz., son‟s birth right and survivorship, are also not recognised in Muslim law. Since under Muslim law, all properties devolve by succession, the right of heirapparent does not come into existence till the death of the ancestor. Succession opens only on the death of the deceased, and then alone the property vests in the heirs. Whenever a female inherits property, she takes her share absolutely and without any restrictions. The Muslim law of inheritance is a unique aspect of Muslim law. It is a different system of law. Prophet Mohammed said: „Learn the laws of inheritance and teach them to the people; for they are one-half of useful knowledge”. About the Muslim law of inheritance, Tayabji observed : “The Muslim law of Inheritance has always been admired for its completeness as well as the success with which it has achieved the ambitious aim of providing not merely for the selection of a single individual or a homogenous group of individuals, on whom the estate of the deceased should devolve by universal succession, but for adjusting the competitive claim of all the nearest relations”. General Principles :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. In the broadest possible sense, the law of inheritance was based on the principles of agnatic preference and exclusion of females. The four basic principles of the pre-Islamic law of succession were : first, the nearest male agnate or agnates succeeded to the total exclusion of remoter agnates. 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 new principles on the aforesaid principles of customary law of r succession. First, the husband and the wife being equal are 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 specific shares to the newly created heirs, who are called sharers, whatever is left

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(residue) and the scheme Is so laid down that something Is usually left, goes to the customary heirs who are called residuaries. It is necessary to notice that the Koran did 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. When the Koran enumerates certain heirs and allots specific shares to them, it does not mean that those who are not enumerated do not get any share. For instance, husband, wife, father, true grandfather, daughter, son‟s daughter, sister and uterine brother are the Koranic heirs, but this does not mean that son or brother do not take anything In the inheritance. They continue to be heirs (they were heirs under customary law) and take their shares. What has happened is this that those persons were not heirs under the customary law have been made heirs (called shares of 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 SI, then W will take one-eighth as her specified share and S and S‟ will take the residue, i.e., seven-eighth. This super-Imposition of the Koranic principles on the customary w of inheritance has led to divergence of opinion among the Shias and e Sunnis, resulting in the propagation of two different rules of inheritance. According to Tayabji,‟ the fundamental difference between Shia and the Sunni law of inheritance are:

(1) The Hanails allow the framework or principles of the pre-Islarnic customs to stand: they develop or alter those rules in the specific manner mentioned in the Koran, and by the Prophet. (2) The Shias deduce certain principles, which they hold to underlie the amendments expressed in the Koran and fuse the principles so deduced with the principles underlying. the pre-existing customary law, and thus raise up a completely altered set of principles and rules derived from them. It is significant to note that the Muslim Personal Law (Shariat) Application Act, 1937 specifically refers to „special property of females‟. By this provision the Act meant to abolish all those anti-women customs contrary to the Muslim law in this regard that were in vogue in certain regions of the country and among certain sections of the community. Under Muslim law the same scheme of succession applies in every case whether the deceased was a male or female. This is one of those salient features of the Muslim law of succession which distinguish it from the parallel law under the Hindu Succession Act, 1956.

Definition :(i) Agnates: An agnate is a relation who is related to the deceased, wholly through male. For example, son‟s son, son‟s son‟s son however distant, son‟s daughter, son‟s son‟s daughter, father‟s father‟s father‟s mother; brother, brother‟s daughter and brother‟s son etc., are agnates. So the only thing is important between the relationship is that all persons through whom relationship is traced should be males. Agnates may be descendants, ascendants or collaterals.

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(ii)

Cognates: A cognate is a relation who is related to the deceased through one or more females. For example, daughter‟s daughter, daughter‟s son, daughter‟s daughter, daughter‟s daughter‟s son, daughter‟s son‟s daughter, mother‟s mother, mother‟s father, mother‟s sister, mother‟s brother etc. A cognate may also be descendants, ascendants or collaterals. (iii) Descendants: Descendants are the offspring of the deceased up to any degree of descent. It means children of children are also included. For example, sons and daughters are the immediate descendants and children and grandchildren of sons and daughters are also descendants. (iv) Ascendants: Ascendants are the ascent means ancestors of parents are also included. For example, father and mother are immediate ascendants and father‟s father and father‟s mother, mother‟s father and mother‟s mother are also descendants. (v) Collaterals: Collaterals are descendants in parallel lines from a common ancestor or ancestors. Collaterals may be agnates or cognates. For example, consanguine brother and sisters, uterine brothers and sisters, paternal uncles and paternal aunts and their children, maternal uncles and maternal aunts and their children are collaterals. (vi) Full Blood: When the father and mother of two persons (male and female) are the same, they are related to each other by full blood. For example, a real brother and a real sister are related to each other by full blood. (vii) Half Blood: When Iwo „persons (male and female) have the same father but different mothers, they are related to each other by half blood. (viii) Consanguine Brothers and Sisters: Children of a common father but different mothers are called consanguine brothers or sisters. For example, if a widower A having son B from his deceased wife, remarries with F and a daughter G is born to them then, although the mothers of B and G are different yet, they have a common blood (consanguinity) of the father. They are therefore, consanguine brother and sister, Consanguine relations are agnates because they inherit through the father. (ix) Uterine Blood: When two persons, (male and female) have the same mother (uterus) but different fathers, they are related to each other by uterine blood. For example, A, a widow having a son S from her deceased husband, marries B and from both, a daughter D is born to them. Here S and D are uterine brother and sister because although their fathers are different persons yet, their mother is common. Uterine relations are cognates because they inherit through a female (the common mother). (x) Heirs :- An heir is a person (male or female) who is entitled to inherit the property of the intestate. For example, any person whether a son or a daughter who is entitled to get a share in the property of the father who dies intestate, is his heir. (xi) Intestate: Intestate is a person who dies without making a Will. (xii) Sharers: Sharers are those persons including male or female, who are entitled to specific shares of inheritance in the property of the deceased. (xiii) Residuaries: Residuaries are those persons who are entitled to the residue of property of the deceased left after allotting the specific shares to the sharers. The residuaries‟ shares are not specified. (xiv) Distant Kindred: Distant kindred are those blood relations of the deceased who are neither the sharers nor the residuaries. (xv) Per capita: When a number of individuals take the property in equal shares, they are called as taking per capita. For example, when the property is divided into equal parts

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between two sons of a son, and three sons of another son, it is called per capita, each taking 1/5 of the property. (xvi) Per stripes: When the property is distributed according to stocks or branches and not according to the number of individuals, they are called as taking per strips. For example, if two sons of a deceased are already dead and he is survived by his two sons of a predeceased son and three sons of another predeceased son, then the grandsons would get only those shares which their fathers would have taken. (xvii) Pro positus: Propositus means a deceased whose property is subject of inheritance. Thus, a person whose properties are inherited by his or her legal heirs is called the propositus. In general term includes „the person proposed‟ or a person from whom the ascending or descending line is traced in the succession of properties. (xviii) True Grand-father: In the language of the law of inheritance, paternal grand-father is called a true grandfather. It means a true grand-father is an agnatic grand-father. If there is no intervention of any female between a male ancestor and the propositus, the male ancestor is called true grand-father of the propositus. For example, the father‟s father or father‟s father‟s father, etc., how high soever, are the true grand-father. (xix) True Grand-mother: Means a female ascendant, howsoever distant between whom and the deceased there is no false grand-father. (xx) False Grand-father or false Grand-mother: The maternal grand-father of a person is technically called as his false grand-father. If, between a grand-father and the propositus there is an intervention of one or more females, the said grandfather is termed as a false grand-father of the propositus. For example, the mother‟s lather, mother‟s mother‟s father, mother‟s father‟s father and father‟s mother‟s father, etc., are the false grand-father because between the propositus and the male ancestor there is a female ancestress. Similarly, if there intervenes any maternal grand-father between a female ancestor and the propositus then, the said female ancestor is a false grandmother of that propositus. In short, false grand-father means a male ancestor between whom and the deceased there is a female link. And false grand-mother means a female ancestor, howsoever distant, between whom and the deceased a false grand-father intervenes.

Applicability of certain rules. :The main principles of succession are as follows: 1. Rule of representation, 2. Rule of exclusion; 3. Rule of primogeniture; 4. Rule of vested inheritance; and 5. Rule of spes successionis. 1. Rule of Representation. —The principle of representation has more than one meaning. It may be applied for the purpose of deciding (a) what persons are entitled to inherit; (b) the quantum or the share of any given person on the footing that he is entitled to inherit. Per stirpes and per capita—Distinguished.—The division of an estate among heirs belonging to different branches may be according to the different stocks or branches to which different sects

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of heirs represents, or it may be according to the individual heirs or claimants without regard to the representation of the branches to which they belong. The former is called division per stirpes while the latter is called division per capita. A Shia leaves two grandsons X and Y from his predeceased son Z, and also one grandson F from his pre-deceased son Z. Here as rule of representation applies among Shias, the division shall be per stirpes and accordingly X and Y will both get 1/2 while F alone shall get 1/2. If the estate were to be divided per capita (in case where A had been a Sunni Muslim) the three grandsons will get 1/3rd each. The Shia Law accepts the principle of representation as a cardinal principle for the purpose of ascertaining the heirs but Sunni Law is different. According to Sunni Law the expectant right of an heir-apparent cannot pass by succession to his heir, nor can it pass by bequest to a legatee under his will. Suppose X, a Sunni Muslim has two sons, the first son dies in the lifetime of his father, but leaving a son. Afterwards X dies leaving his second son and the grandson by the predeceased son. Here under Sunni Law the surviving son will get the whole property excluding his nephew, i.e., grandson of X. Here in this case the grandson cannot claim his father‟s share because in the lifetime of X, the first son died. Here the grandson is not entitled to claim his father‟s share as representating him perhaps because, his father never inherited from his grandfather. Thus in this present illustration the grandson is excluded from the inheritance, by his uncle, on the ground that a son of a predeceased son is not an heir. But according to Shia Law, the descendants of a deceased son, if they are heirs, take the portion which he, if living, would have taken and in that sense represent the son. In the same limited sense, the descendants of a deceased daughter represent the daughter, if they inherit, they take the portion which the daughter, if living, would have taken. Under Shia Law, this principle of representation is not only confined in its operation to descendants only but it applies in the accending as well as in the descending line. Thus, greatgrand parents, if living, would have taken and the fathers and aunts take the portion which the deceased‟s uncles and aunts if living would have taken. 2. Rule of Exclusion.—Every person, including a child in the womb (provided it is born alive), is entitled to inherit, unless there is specific rule of exclusion. According to the rule of exclusion certain persons are disqualified to inherit the property of another person. Such persons though heirs are excluded from inheritance due to certain impediments imposed on them by Muslim Law. These impediments or disabilities are personal and are known as grounds of exclusion. These grounds, according to pure Muslim Law, are as follows: 1. Homicide; 2. Illegitimacy; 3. Slavery; 4. Difference of religion; 5. Difference of allegiance or country; Not recognised in India. 6. Estoppel in succession; 7. Doctrine of exclusion of (Hujab). 8. Exclusion of daughters from the right of inheritance. Out of the above, the doctrine of exclusion is the most important.

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(1) Homicide: (a) Sunni Law.—Under Sunni Law a person who causes the death of a person is not entitled to inherit the property of that person; no matter whether the death was caused intentionally or by accident. (b) Shia Law.— Under Shia Law, the murderer of a person is disentitled to inherit him only when the death is caused intentionally. (2) Illegitimacy.—(a) Shia Law.—Under Shia Law an illegitimate person being the child of none, is disqualified to inherit both his mother and father. (b) Sunni Law.—Under Sunni Law an illegitimate child is entitled to inherit his mother but not his father. (3) Slavery.— This impediment to inheritance has been abolished and has no place in Mohammedan Law as it is administered in India. The bar of slavery has been abolished by the Abolition of Slavery Act, V of 1843. (4) Difference of religion.—Under Islamic Law a non-Muslim could not inherit from a Muslim but the Caste Disabilities Removal Act of 1850 does away in India with the exclusion from inheritance from a deceased Muslim on the ground of mere difference of religion whether due to apostasy or otherwise. The estate of a Hindu converted to Islam and dying a Muslim is subject to Muslim Law. (5) Difference of allegiance, etc.—With the end of Muslim rule in India, this ground of exclusion lost significance. (6) Estoppel in succession.—A person who first denies his relationship with the propositus, cannot be allowed subsequently to turn his back and claim inheritance when succession opens. Denial of relationship operates as estoppel in succession. (7) Doctrine of exclusion.—(a) This doctrine consists of a set of three rules which govern inheritance and exclude certain heirs by recognising the preferential claims of certain other heirs. These are as follows Rule 1.— A person who is related to the propositus through another is excluded by the presence of the latter. A has two sons X and Y. Y dies leaving heritable property. Now X cannot claim inheritance on the basis of his being brother of the deceased, because his relationship with Y arises through A, their father and hence the presence of A excludes X. Rule 2.—Within the limits of each class of heirs, an heir nearer in blood excludes the more remote. A has a son P and a grandson X from P. P being nearer in blood will exclude X. A (Propositus) P (son) X (Grandson) The daughter, though she is nearer in degree, does not exclude the brother‟s son or his son. Thus, if the surviving relations be a daughter and brother‟s son, the daughter takes 1/2, and the brother‟s son takes their residue. The, reason is that the daughter in this case inherits as a sharer, and the brother‟s son a residuary, and the principles laid down above applies only as between relations belonging to the same class of heirs. Rule 3.—A person excluded, may exclude others. Who is excluded may exclude others. According to this rule, the person who himself is excluded from inheritance may affect the share of others, i.e., he will not be supposed to be non-existing for excluding others. It is one thing that .It was held that his property will pass on his death to his Muslim wife

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and children, not to his Hindu wife or children. he is entitled to receive any share due to the presence of some intermediary and it is another thing that his presence reduces or restricts the claim of another. (8) Exclusion of daughters from the right of inheritance.—Under the Muslim law, daughters are given the right of succession. However, this rule is not absolute. There is one exception to this rule. Under the customary law, a daughter may be excluded from the right of inheritance. 3. Rule of Primogeniture.—The rule of primogeniture is, that where a person has several sons, the eldest son has a preferential claim over the estate of the deceased father. Generally this rule is not recognised by Mohammedan Law. The Shias, however, recognise the exclusive right to the eldest son c f such articles of the father as his wearing apparel, Quran, ring, sword, arms, the mantle and horse. In S. Fateyab Au Meerza v. Union of India, Nawab married with a Jewess woman. Two sons were born out of wedlock. The Calcutta High Court held that on death of the Nawab unless succession to Nawabship is finally decided by competent court, the brother of deceased Nawab could not claim title on the basis of law of primogeniture and on allegations that both sons have renounced Islam. (4) Rule of vested inheritance.—It is a well-established rule of Muslim Law that property never remains in a state of abeyance but on the death of proprietor passes to his various heirs. By the term „vested inheritance‟ is meant the share of inheritance that vests in the heir immediately on the death of the propositus (whose property is claimed). The moment a person takes his last breath, his property vests in his heirs though the actual distribution according to the shares of each heir may take place after sometime. Thus vesting of inheritance is the first and foremost stage in the devolution of property to the legal heirs of a person. This necessitates a brief explanation of the two stages of succession. Two stages of succession.—The two main stages in the devolution of the property of a deceased person are : (1) Vesting of inheritance, and (2) Distribution of inheritance. Vesting of inheritance is a simple affair.—As said above, the moment a person dies, all his right and interests in the property terminate and the property stands vested in the heirs. Distribution of inheritance.—Vesting of property takes place immediately on the death of the propositus, but it takes a fairly long time to effect the actual, distribution of the property. Some of the reasons, why actual distribution takes a long time are these (i) Determination of heritable property, which in itself is a long process. (ii) determination of exact shares of each heir, and (iii) obtaining the necessary certificates from the court. Thus vesting of inheritance is the first and the foremost initial stage in the process of devolution; the second stage being the actual distribution of the property. The significance of the rule of vested inheritance arises in answering the question, “what are the rights of an heir in a property before the taking place of actual distribution, i.e., before the second stage”.

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Rights of heirs before distribution.— (a) If an heir dies before the actual distribution of the property, the property will pass to his heirs on the basis of the rule of vested inheritance. (b) Any heir may, even before the distribution of the estate, transfer his share to a bona fide purchaser for value. The heir will pass a good title and creditor cannot follow the estate in the hands of such purchaser.‟ The only conditions are that he must be a (i) bona fide purchaser, (ii) he must purchase the property for value, and (iii) he must not have the notice of the debts. (5) Rule of „Spes Successionis‟. While the rule of „vested inheritance‟, explained above is applicable after the death of propositus, the rule of spes successionis applies before the death of such person. The cardinal principle of Mohammedan law is that the succession for the first time opens on the death of the propositus. Before his death nobody can claim any right in the property on the basis of his being the heir apparent. Hence during the life time of a person all that an heir apparent has is a mere chance of inheriting i.e., spes successionis. (Spes—hope of successionis succession, i.e., mere hope of succession). The rule.—Thus the rule is that a mere spes successionis or a mere chance of succession, cannot be the object of a valid transfer or release.A who has a son B makes a gift of his property to C. Now B alleging that the gift was procured by undue influence sues C in A‟s life time on the basis of his rights to succeed to property on A‟s death (i.e., spes successionis). It was held that the right of B being a mere succession, he has no cause of action, for he is not enttitled to any interest in A‟s property during A‟s life time. But the gift would be liable to be set aside if the suit was brought after A‟s death provided it was brought within the period of limitation. Such a right claimed by B in the above illustration is mere spes Successionis i.e., an expectation or hope of succeeding to A‟s property if B survived A. The Mohammedan Law does not recognise any interest expectation of the death of another, and till that death occurs which by force of that law gives birth to the right as heir in the persons entitled to it according to the rule of succession, he possesses no right at all. Disqualified Heirs :- Disqualified heirs are those who are excluded from inheritance. In India, no Muslim who is entitled as an heir, to inherit the estate of a deceased shall be disqualified from inheritance except in the following mentioned cases: (i) Apostate (ii) Murderer (iii) Illegitimate-children (iv) Step-relations (v) Childless widow (vi) Disqualification provided by some law or custom. 1. Apostate or Difference of Religion: Under the pure Islamic law, an apostate (nonMuslim) is not entitled to inherit the property from a deceased Muslim.4 But after coming into force of the Caste Disabilities Removal Act, this disability is removed by this Act. Under this Act, renunciation of religion by any heir does not affect his or her rights of inheritance under the personal law to which that heir belonged before conversion. Accordingly, a converted heir will continue to be governed by the Muslim law of inheritance.

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However, it may be noted that religion of the propositus, i.e., deceased is an important factor because the properties devolve under the personal law to which the propositus belonged just before his death. So, a non-Muslim is entitled to inherit in the property of a deceased Muslim whose heir he is, but his non-Muslim descendants will not be entitled to inherit the property of a deceased Muslim.‟ In K.P. Chandrashekhar v. Government of Myore a Hindu woman converted to Islam died as a Muslim. She had no heir under Muslim law. Her Hindu brother claim inheritance. It was held by the court that her Hindu brother could not inherit because he was not an heir under Muslim law, Inheritance to the property of a convert to Islam is governed by Muslim law and his heirs would inherit accordingly. 2. Murderer: Under the Hanafi law, if the death of the deceased, whether intentionally or negligently or accidentally, he will be excluded from inheritance. But the heir causing the death will not be excluded from inheritance, if the death is caused in the performance of a duty. For example, if the father causes the death of his child by the circumcision of the child, the death will be deemed to be caused in the performance of a duty. Similarly, if the death of a person caused by his heir while inflicting punishment under the direction of law, the heir will not be excluded from inheritance because death was caused by him while performing the duty. Under Shia law, the death of the person caused intentionally by the heir, excludes him from inheritance. Death caused negligently or accidentally by an heir will not be disqualify him from inheritance. It is important to note here that exclusion from inheritance of an heir causing death of the deceased is only a person bar, any other person claim through him will not barred from being inherited from the deceased. 3. Illegitimate Children: Under Muslim law an illegitimate child is considered the child of the mother only, it cannot inherit father‟s property. Similarly, an illegitimate child cannot inherit a legitimate child born to the mother from a subsequent marriage.The same position would prevail with the child of mother who has been divorced by Lian. The child born to such a mother is considered illegitimate. Under the Hanafi law, an illegitimate child is entitled to mutual rights of inheritance with its mother and all other relations through mother but not with its father and other relations through father. For example, when a female dies leaving behind her husband and an illegitimate son of her sister the husband will get one-half as sharer and the residue will go to sister‟s illegitimate son because an illegitimate child is entitled to inherit from its mother as well as maternal relations. Shia law: Under Shia law, an illegitimate child is treated as nullius fihius and is not entitled to inherit the estate of a deceased relation.‟ There are no mutual rights of inheritance between such child and its relations. As an illegitimate child has no parentage or father and is not related in law to the man who has begotten him, the latter will not be considered his father for purpose of determining his nasab. Therefore, the man who begets an illegitimate child will not be considered in law as his father and mother‟s link alone being not sufficient to establish uterine relationship, an illegitimate child cannot be considered the uterine brother of the legitimate child of the same mother and as such he was not entitled to inherit as his heir.

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4. Adopted Child: As adoption is not recognised by Muslim law, therefore, adopted person is not entitled to anything even on the basis of Will. The adoption is a question of fact and not of law. 5. Step-relations: Step-relations have no mutual rights of inheritance. So, a step-mother or a step-son is not heirs. For example, where a Muslim A marries a widow B having a son from her previous husband, the son is a step-son of A, who is step-father of this son. The step-father and step-son cannot inherit each other‟s properties. However, the step-child is competent to inherit from its natural father or natural mother. Similarly, the natural father and natural mother can inherit from their natural sons or daughters. 6. Childless Widow: Under the Shia law, a childless widow is not entitled to a share in her husband‟s property. But she has a share in the value of trees and buildings standing on the land as well as in the movable property of her husband. But in the absence of other heirs, she was entitled to inherit from her husband not only her share but also the rest of property including the land by the application of the doctrine of return. 7. Disqualification provided by some law or custom: This rule is applicable not generally and locally, the Shariat Act has superseded application of custom generally but at places and circumstances in which the Act is not applicable the local custom may apply. Disqualification excluding the heirs from inheritance may be provided by some law or custom. (a) Statutory disqualflcation: Statutes may exclude some heirs from inheritance. In the Oudh Estate Acts of 1869 and 1910, a special rule of prirnogeniture is laid down. The family custom of primogenitary succession governs the talukdari property hence excluding the daughters from succession. (b) Customary disqualification: Customs may also exclude some heirs from inheritance. Among the Gujars of Punjab and Jammu and Kashmir, daughters are excluded from inheritance by custom and they inherit only in default of agnates.

Hanafi law of Inheritance Underany law of Intestate succession, two questions, that arise; are: (I) (II) who are the heirs of the deceased, and 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 categories of heirs and heirs in each category are entitled to receive.

Heirs :- It may be recalled that the pre-Islamic customary law allowed only male agnates to succeed, and among the male agnates, the descendants were preferred to ascendants, and ascendants V were preferred to collaterals. Further, no female was allowed to participate in the inheritance. What Islamic law had done Is to superimpose on this customary structure certain blood relations who are either equally near, or. nearer, 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

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inheritance, as a relation by affinity. Looked at in this perspective, apart from the spouses (husband or wife) of the deceased, the other heirs specifically mentioned In the Koran are at par with customary heirs. Thus, son, or son‟s son how low soever, Is entitled to Inherit under the customary law. The Koran superimposed daughter, son‟s daughter or son‟s son‟s daughter how low soever, and gave her a specified share. It should be noted that daughter‟s daughter, who Is a cognate, and, therefore, remoter than the son or son‟s son, is not Included. Since son and daughter were included, It was logical to include mother and father. Similarly, since son‟s son and son‟s daughter were included, it was logical to include true grandfather and true grandmother. It was equally logical to include certain collaterals. Thus, were Included full and consanguine sisters, since full and consanguine brothers were heirs under customary law. For the same reason were included uterine brothers and sisters. To these newly created heirs, the Koran allots a specific share, These new heirs are commonly called “sharers”.‟ Fyzee prefers to call them “Koranic heirs, since these heirs were created by the Koran.2 It is noteworthy that the fractional shares that are specified by the Koran are only six, namely 1/2, 1/4, 1/8, 2/3, 1/3 and 1/6. The sharers are allotted their specified shares. Then whatever is left after allotting share to the sharers, the rest— residue—is divided among the customary heirs who have been accorded recognition by the Koran. These heirs are commonly called “residuaries”. This term came into vogue on the assumption that after giving specified shares to the sharers, whatever is left Is given to them. Fyzee objects to this term, and prefers to call them “agnatic heir”. In the scheme of heirs, It should be noticed that certain sharers become residuarles on account of the existence of certain other near relations. Thus, when the deceased has no child or child of a son how low soever, the father and the true grandfather become residuarles. Similarly, the daughter becomes a residuary when the deceased has left behind a son, and the full sister becomes residuary when the deceased Is survived by a full brother. This also applies to consanguine sister, when the deceased Is survived by a consanguine brother. The Hanafi law lays down that In the absence of the sharers and the residuarles, the estate is passed to other relations who are called “distant kindred”. The distant kindred are those relations of the deceased who are neither sharers nor residuarles. Fyzee prefers to name them as “uterine helrs”. On the failure of distant kindred, In modern India, the estate of the deceased goes to the State by escheat.‟ Thus, under the Hanafi law, the heirs of a deceased Muslim, male or female, fall under the following classes (I) The sharers, (II) The residuarles, (III) The distant kindred, and (1V) The State by escheat.

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The Sharers :- The sharers are twelve In number. They may be stated thus: A. Relations by affinity of marriage: 1. wife, 2. husband. B. Relations by blood: (a) female agnatic descendants, 3. daughter, 4. son‟s daughter, how low soever, (b) female agnatic collaterals: 5. full sister, 6. consanguIne sister, (c)cognatic collaterals; 7. uterine brother, 8. uterine sister. (d) female ascendants; 9. mother. 10. true grandmother, (e) male ascendants; 11. father, and 12. true grandfather. The Koran allots specified shares to the sharers. In the case of some sharers, their shares vary under certain circumstances. Some sharers under certain circumstances do not inherit as sharers, but as residuaries. Heirs and their allotted Shares :1. Husband: The husband gets 1/2 if there is no (a) child or (b) child of son how low soever (h.l.s); if there is (a) child or (b) child of son( h.l.s) then husband gets 1/4. 2. Widow: The widow gets 1/4 if there is no (a) child or (b) child of son how low soever (h.l.s); if there is (a) child or (b) child of son h.Ls then widow gets 1/8. If the propositus had left more than one widow, all the widows share equally out of the 1/4 or 1/8 share, as the case may be. 3. Father: The father will be treated as Residuary if there is no (a) child or (b) child of son how low soever (h.l.s); if there is (a) child or (b) child of son h.l.s then Father gets 1/6. 4. True Grand-father: True grand-father is entitled to inherit only in the absence of father. It means if the propositus dies leaving behind both father and a true grand-father, the true grand-father cannot inherit. If there is no father, the true grand-father inherits like a father. It means if there is no father, the true grand-father would become residuary in the absence of children. But in the presence of children a true grand-father gets 1/6. 5. Mother: The share of mother is 1/3 in the absence of (a) child, or (b) child of a son h.Ls or (c) two full sister, or (d) two full brothers, or (e) one brother plus one sister, whether

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full, consanguine or uterine. If the presence of above-mentioned relations, mother share is 1/6. 6. True Grand-mother: A paternal grand-mother is excluded from inheritance in the presence of (a) mother, or (b) father or (c) a nearer true-grand-mother whether maternal or paternal. A maternal grand-mother is excluded from inheritance in the presence of (a) mother, or (b) a nearer maternal or paternal grand-mother. If not excluded, the share of true grand-mother is 1/6. Two or more grand-mothers get 1/6 jointly. 7. Daughter: The share of one daughter is 1/2. If there are two or more daughters, the share is 2/3 to be divided equally among them. But daughter together with son is treated as agnatic heir, i.e., inherits as Residuary. 8. Sons‟s Daughter: The sons‟ daughter inherits only in the absence of (a) two or more daughters, or (b) son, or (c) higher son‟s son, or (d) two or more higher son‟s daughter. In the absence of above relations, the son‟s daughter gets 1/2 if single and 2/3 if more than one. If son‟s daughter is together with one daughter, the share of sons‟s daughter is 1/6 whether such son‟s daughter is single or more. For example, if there is a daughter and two son‟s daughters, the share of son‟s daughter would be 1/6 which would be divided equally among them, i.e., each son s daughter would get 1/12. Son‟s daughter together with son‟s son is treated as agnatic heir, i.e., inherits as Residuary. 9. Full Sister: The share of one full sister is 1/2, if number of sister is more than one, share is 2/3 to be divided equally among them. If full sister is together with full brother, she becomes an agnatic heir and inherits as Residuary. A full sister is excluded from inheritance in the presence of (a) child, or (b) child of son h.l.s or (c) father, or (d) father‟s father. 10. Consanguine-Sister: The share of one consanguine sister is 1/2, if number of consanguine sister is more than one, share is 2/3 to be divided equally among them. With one full-sister, the share of consanguine sister is 1/6 whether single or more. A consanguine sister is excluded from inheritance in the presence of (a) child, or (b) child of son h.l.s or (c) father, or (d) father‟s father, or (e) two full sisters, or (f) one full brother With consanguine brother, the consanguine sister becomes agnatic heir and inherits as Residuary. 11. Uterine Brother: The share of one uterine brother is 1/6, if there are two or more uterine brothers, their share is 1/3 to be equally divided among them. Uterine brother is excluded from inheritance in the presence of (a) child, or (b) child of son h.l.s or (c) father, or (d) father‟s father. 12. Uterine Sister: The share of one uterine sister is 1/6, if there are two or more uterine sisters, their share is 1/3 to be equally divided among them. Uterine sister is excluded from inheritance in the presence of (a) child, or (b) child of son h.l.s or (c) father, or (d) father‟s father.

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From the above it is clear that Quran mentions 12 heirs, who are to inherit the deceased. In Arabic „Jadda‟ (which means paternal or maternal grandmother, that would mean True and False grandmothers) includes maternal and paternal grandmother and if both are taken as heirs then the number would be 13 and not 12. Prophet had said that after giving to Quranic heir whatever is left, give them to residuaries. Out of these 12 heirs, eight are females and only four of the heirs are males, reason being that the bigger chunk of property is kept intact for the second class of heirs who are males. Son is a residuaries and comes under Class II of heirs. The shares of Class I heirs are pre-determined and specific. Fractional shares have been allotted by Quran to this class of heirs. These fractions are six in number, viz. 1/2, 1/4, 1/8, 2/3, 1/3 and 1/6. These fractions are obligatory and compulsory for obedience and custom does not govern it.

Distribution of Assets among the Sharers and Residuaries :- After the payment of the funeral expenses, debts and legacies (in case the deceased had left a will), the next step Is to distribute the estate of the deceased among the heirs. Among the heirs the sharers are to be given their shares first, then the residue is to be distributed among the residuaries. In the absence of the sharers, the reslduaries take the entire estate. In the absence of both the sharers and the residuaries, the estate devolves on the distant kindreds. 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 residuarles are Class II heirs, they together share the property. The sharers are Class I heirs in the sense that they have the right to be allotted their shares at the first instance. After the prescribed shares have been allotted to them, the remaining property goes to the residuarles. 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 inheritance, since he is a 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 alongwlth the husband or the wife. Thus, If a Muslim dies leaving behind a widow, W, and full sister‟s son FSS (who Is a distant kindred), then W will take 1/4 as sharer, and the residue of the estate, namely, the 3/4 will go to‟ FSS. 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 residuarles. Similarly, If a Muslim dies leaving behind a father and a true grandfather, then the father alone will inherit and the true grandfather will be excluded, even though both are sharers. Among the residuaries, the, descendants are preferred over ascendants and collaterals, and ascendants are preferred over collaterals. Among the collaterals, the descendants of a nearer ancestor are preferred over the descendants of a remoter ancestor. 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. Another general rule is that when one Is related to the deceased through another, one does not inherit so long as that another Is alive. Thus, father excludes both a brother and a sister. However, brothers and sisters are not excluded by the mother. The reason Is that when the mother is alive, she cannot claim to Inherit the entire estate. When there is no other

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heir, she takes part of the estate as a sharer, and the rest by return (see below, under the head „Doctrine of Return”). In the Hanafi scheme of inheritance, 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”. They are the substitutes of the last three primary heirs.‟ These are children of a son how low soever, 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. If he dies leaving behind a widow and no child then the widow takes 1/4. If he dies leaving behind more than one widow, then 1/8 (when there are children), or 1/4 (when there are no children) is distributed among them equally. If a Muslim female dies leaving behind her husband and children, then the husband takes 3/4 as a sharer and the residue of 3/4 goes to the children. If she dies leaving behind no child, then the husband takes as a sharer. Father and True Grandfather :- The father is always an heir. Under no circumstances can he be excluded from inheritance. The true grandfather, being a substitute, is always excluded by the father. A nearer grandfather always excludes a remoter grandfather. The position of father as an heir may be discussed under the following circumstances : (a) Whether the deceased had left children, the father takes 5/6 share. Thus, when P dIes leaving behind his father and a son, the father will take 1/6 and the son will take 5/6. (b) Where there are no children (or child) or agnatic descendants,. the father and, in his default, the grandfather, takes as a residuary. (c) 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. (d) In certain circumstances the father may take in dual capacity, as a sharer and as a residuary. Thus, where a Muslim dies leaving behind his father and a daughter, then the daughter takes as a sharer, the father takes 1/6 as sharer and the residue of estate, i.e., 1/3, the father takes as a residuary. Thus, the father will take 1/6 + 1/3 = 1/2. In this situation the position of the grandfather (in the absence of the father) will be the same, since he is a substitute for the father. Mother and True Grandfather :- Mother is never excluded from Inheritance. She takes 1/3 where there are no children, and she takes 1/6 where there are children. The true grandmother lnhevits in certain circumstances. (a) The maternal grandmother Is excluded „by mother or nearer true grandmother, paternal or maternal. (b) The paternal true grandmother is excluded by the father, the mother and by a nearer true grandmother, paternal or maternal, as well as by a nearer true grandfather. Mother‟s position may be illustrated thus P, a Muslim, dies leaving behind his mother, M, two sons, S and S 1, and a daughter, D. M will take 1/6 as sharer, and the rest will go to D, S and S‟ as residuaries : D taking 1/6. S taking 2/6 and S 1 taking 2/6.

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(c) The mother takes one-sixth share if a Muslim dies leaving behind two sisters, or one brother and a sister (full, consanguine or uterine). In the presence of the father, sisters do not inherit. It is a curious aspect of Muslim law that an heir may be totally or partially excluded from Inheritance by another, yet his presence may exclude another heir partially or totally. Daughter and Son‟s Daughter how low soever :- The daughter takes as sharer in the estate of the deceased parent, when there is no son. When single she takes , if two or more, all of them together take 2/3. With sons she takes a residuary. The son‟s daughter takes when one, 2/3 when two or more, in the absence of son, daughter, higher son‟s son‟s son, higher son‟s daughter or equal son‟s son. With equal son‟s son‟s son, she takes a residuary. The son‟s daughter takes per capita and not er‟stirpes. This means that the share of daughters Is divided into as many parts as are son‟s daughters, irrespective of the number of sons. Under the Hanafi law, the son‟s daughter inherits in her own right, and not as a representative of the son. The son‟s daughter is not excluded when there is only one daughter, but takes 1/6 as a sharer. This principle applies to lower son‟s daughters also (such as son‟s daughter how low soever). P dies leaving behind his father F, mother, M, daughter D, and four daughters of a predeceased son, SD, SD1,SD2 and SD3. In this case, F will take 1/6 as sharer. M will take 1/6 as sharer will take as sharer, and SD, SD1, SD2 and SD3, together will take 1/6 each taking 1/24. Sister :- The sister is a sharer. One sister takes share; two or more take 2/3. (a) But she is not a primary heir. She takes only in the absence of a son, son‟s how low soever, father and true grandather. (b) With full brother (and in certain cases with daughter) she becomes a residuary. (c) If there are more than one full sister, consanguine sister is excluded. But where there is only one full sister, then consanguine sister takes 1/6. P dies leaving behind a full sister,FD, three consanguine sisters, CS‟, CS2 and CS3, one uterine brother, UB, one uterine sister, US. FD will take * : CS1, CS2, and CS3 together will take 1/6, each taking 1/18. UB and US together will take 1/3, each taking 1/6. Uterine Brother and Uterine Sister :-The uterine brother and the 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 soever, father, true grandfather. (b) A full brother or a full sister does not exclude a uterine brother or a uterine sister. (c) Whenever the uterine brother and sister inherit, they take equal share; the rule of male taking double portion does not, apply to them. (d) A uterine brother or a uterine sister takes 1/6 share. Where there are more than one uterine brother or uterine sister or more than one uterine brother and uterine sister, they together take 1/3. and between them share It equally. P dies leaving behind two full sisters and two uterine sisters. The full sisters together will take 2/3, each taking 1/3 and uterine sisters together will take 1/3, each taking 1/6.

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There is one interesting case, the Himaryya, where a Muslim female died leaving behind her husband, H, mother, M, two uterine brothers, UB and UB‟, and one full brother, FS. H took, „1, M took 1/6, and UB and UB‟ took 1/3. In this manner we find that 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. (The case was decided by Caliph Omar).

CLASS II: HEIRS ENTITLED TO INHERIT AS RESIDUARIES OR ASABAT Asabat would nearly mean „those who go to battle together and have common blood feud (male agnates), literal meaning being-when a thing encompasses other things from all around. As such they are called „Agnatic heirs‟ in preference to the misleading term „residuaries‟. The residue and the residuary gives an impression that what is left of the property after the share of Class I heirs are satisfied according to their specifications, but it is not true because the bulk of the property remains as „residue‟. This important class belong to son, father, brother, paternal uncle etc., who are important male relations and expected to get more. The Residuaries constitute Class II of the heirs of a Sunni propositus. Where a prospositus has no Sharers at all, the whole property is inherited by the Residuaries. Secondly, if there are Sharers but after giving the property to them, there remains a residue and among heirs there are also the residuaries. For example, if a Muslim dies leaving behind a Mother, and a son then mother as a sharer will get 1/6 and Son will get the remaining 5/6 as residuary. Such residuaries may include males and females, descendants, ascendants and collaterals of the deceased. A list of Residuaries and rules regarding to their inheritance is given below: (i) Son: When there is no daughter, the son takes the entire residue, but if the daughter present, the son gets double the share of the daughter. (ii) Sons‟s Son h.1.s: In such cases, nearer son‟s son excludes the remoter, Two or more sons‟s sons inherit equally and Son‟s daughter together with son‟s son becomes Residuary but the son‟s son gets double the share of Son‟s daughter. (iii) Daughter: She becomes a residuary when there co-exists a son of the : deceased, (iv) Son‟s daughter h.1.s.: She becomes a residuary when there co-exists son‟s son h.l.s, or in other words an equal son‟s son or a lower son‟s son provided that she does not inherit as a Sharer. (v) Father: As a Residuary, the father gets the entire residue. (vi) True Grand-father: A true grand-father also takes the entire residue but a nearer true grand-father excludes the remoter. (vii) Full Brother: If there is no full sister, the full brother inherits the entire residue, but if there is full sister, the full brother inherits with her but his share is double the share of a sister. (viii) Full Sister: In the absence of full brother and other Residuaries enumerated in the preceding line, the full sister is treated as Residuary provided there is daughter, or son‟s daughter h.l.s or one daughter and a son‟s daughter h.l.s.

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(ix)

Consanguine Brother: A consanguine brother inherits together with consanguine sister but the share of consanguine brother is double the share of consanguine sister. (x) Consanguine Sister. In the absence of consanguine brother and any of the Residuaries given above, the consanguine sister is treated as Residuary and takes the residue provided there is daughter, or son‟s daughter h.l.s or one daughter and a son‟s daughter h.l.s, (xi) Full Brother‟s sons (xii) Consanguine Brother‟s son (xiii) Full Brother‟s Son‟s son (xiv) Consanguine Brother‟s son‟s son (xv) Full paternal uncle (xvi) Consanguine paternal uncle (xvii) Full paternal uncle‟s son (xviii) Consanguine paternal uncle‟s son (xix) Full paternal uncle‟s sdn‟s son (xx) Consanguine paternal uncle‟s son‟s son Shifting of status of heirs as residuaries :- Four females and two males, who are otherwise primary Quranic heirs or sharers are shifted to Class II (residuary) in certain circumstances. These six are (1) Daughter, (2) Son‟s daughter h.l.s, (3) Full sister, (4) Consanguine Sister, (5) Father and (6) True grand-father h.h.s. All of them are Quranic heirs but certain circumstances force them to inherit as residuaries. Rules have been so framed that males who are in the category of residuary (as son), could inherit in the residue. In the other case if these females are allowed to inherit in their normal share (as mentioned in the above), there will be little or nothing left as a residue to be given to males. The daughter inherits as a Quranic heir when there is no son, but where there is son, she inherit as a residuary. This is a marked change. But the father and true grandfather succeed in certain circumstances both as Quranic heir and a residuary. Both of them are the only relation, who could inherit both as a „Sharer‟and a residuary‟. All the other four females, above mentioned would either inherit as a Quranic heir or as a residuary.

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Distribution of the Estate of a deceased among the Sharers and the Residuaries:- After paying the funeral expenses ,debts and legacies if any , the rest of the estate of a deceased muslim divided among the heirs . Among the heirs ,the Sharers are given their specific shares and after allotting the shares of the Sharers, if there is any residue, it is divided among the residuaries. If there is no Sharers, then the residuaries take the entire estate. In the absence of both Sharers and Residuaries, the estate goes to the distant kindard. Where Residuaries are the only legal heirs of a propositus the whole properly is distributed among them. If all the Residuaries are males, the property is divided among them equally. But, if the Residuaries include also females, the property is divided in such a manner that share of a male is double the share of a female. Where, among the legal heirs of a propositus, there are Sharers and Residuaries both, the whole property is not given to the Residuaries. In such circumstances the specific shares of the Sharers are allotted first and remaining property is distributed among the Residuaries. The distribution of property among Residuaries may be understood with the help of following illustrations: A Sunni Muslim dies leaving behind her husband, mother, son and daughter. In this case, heirs of the deceased include Sharers as well as Residuaries. The snares are: Husband-1/4 (as Sharer), Mother 1/6 (as Sharer), Son and daughter: Residuaries. After giving the property to husband and mother, there remains some residue which is 1- (1/4 + 1/ 6) = 7/12. This 7/12 residue is to be distributed between son and daughter in the ratio of 2: 1. It means the son and daughter would get 2/3 and 1/3 . Therefore, in this residue, the Son and Daughter would get (2/3 of 7/12) and (1/3 of 7/12) respectively. Finally, the shares of the legal heirs are as under: Husband : 1/4 or 9/36 Mother : 1/6 or 6/36 Son (2/3 of 7/12) 14/36 Daughter : (1/3 of 7/12) 7/36 ___________________ 36/36 Doctrines of Aid (increase) 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 excess of the unity, or (ii) may be less than the unity. The former situation is solved by the application of the doctrine of aul or increase, and the latter by the application of the doctrine of radd or return. Doctrine of aid or lncrease.—When the sum total of the shares allotted to various heirs in accordance with their entitlement exceeds the unity, then the doctrine of aul lays down 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 (au, though in fact, the shares are proportionately reduced.

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P dies leaving behind her husband,H, two full sisters, FD and FD‟, and mother, M. They will be allotted the shares as under: H 1 /2 or 3/6 FD & FD‟ .... 2/3 or 4/6 M 1/6 or 4/6 _____________________ 6/8 The proportionate reduction of shares is achieved by increasing the denominator from 6 to 8. Thus, the shares of the respective sharers will be: H 3/8 FD&FD 1 4/8 M 1/8 __________________________ 8/8 = 1 P dies leaving behind a husband, H, full sister, FD, two uterine sisters, MD and MD‟, two uterine brothers, MS and MS‟. and mother, M. All these heirs are sharers. In accordance with their entitlement their shares will come to 1/6 reduced to 1/9 1/2 reduced to 3/9 1/9 reduced to 3/9 1/3 reduced to 219 Total 9/9 = 1 P dies leaving behind his mother M, father, F, widow, W, and three daughters. In accordance with their entitlement, their shares will be, as shown in the table. These will be proportionately reduced as shown in the table. F... . 1/6 = 2/24 reduced to 4/24 M 1/6 = 41/24 reduced to 4/24 W 1/8 = 16/24 reduced to 3124 D, D1 and D2 together 2/3 = 16/24 reduced to 16/27 Doctrine of radd or return.—When there Is surplus left after allotting the shares in accordance wlh their entitlement, and there are no residuarles to take the surplus, then the doctrine of return lays down that the surplus is to be distributed among the sharers in proportion to their respective shares. To this doctrine one exception is recognized, viz., neither the husband nor the wife is entitled to the return so long as there is alive another sharer or a distant kindred. The reason for his exception appears to be the hang-over of a pre-Islamic notion under which neither the husband nor the wife was entitled to Inheritance. The husband and wife were made the heirs by the Koran, and their shares were unalterably fixed and thus they were considered not to be entitled to the return. According to the strict Islamic law, in the absence of another sharer or a distant kindred, the surplus would go to the State by escheat. But In India this is not the law. In the absence of a sharer or a distant kindred, the surplus returns to the husband or the wife, as the case may be.‟ Thus, under Muslim law of modern India, the doctrine of return lays down: (1) the M. H FD MD, MD1, MS, MS1 together

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surplus is distributed among the sharers in proportion to their shares. (II) But the husband or the wife is not entitled to return, so long as there is a sharer or a distant kindred alive. (lii) If there is no sharer or a distant. kindred then the surplus returns to the wife or husband. We may explain the doctrine with some examples. P dies leaving behind his mother M, and his daughter 0. M takes 1/6 and 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 1/4 and D‟s share to 3/4. M 1/6 = 1/6 increased to‟ D 1/2 = 1/6 increased to 3/4 Total : 4/4 = 1 The formula in the case of return is to reduce the common denominator. Distinction between “Increase” and “Return”.—The following are the points of distinction between the Doctrine of Increase and Doctrine of Return: 1. Doctrine of Increase applies in cases where the total shares of the sharers is more than unity; whereas in “Return” the total falls short of unity. 2. In “Increase” the sharer undergo a rateable reduction. In “Return” the shares undergo a rateable increase. 3. Husband and wife are no exception to the Doctrine of Increase, whereas in the Doctrine of Return the husband or wife is not entitled to the “Return” so long as there is any heir whether sharer, residuary or kindred. Distant Kindred—Definition.—No precise definition of distant kindred is available. The definition that is generally given is that distant kindreds are those relations by blood who are neither sharers nor residuaries.6 Broadly speaking these are two kinds of distant kindred to whom property devolves. The first kind of dtant kiridreds are divided into the following four classes. (i) Descendants of the deceased : 1. Daughter‟s children and their descendants. 2. Children of son‟s daughters, how lowsoever and their descendants. (ii) Ascendants of the deceased 1. False grandfathers, how highs oever. 2. False grandmothers how highsoever. (iii) Descendants of parents 1. Full brother‟s daughters and their descendants. 2. Consanguine brother‟s daughters and their descendants. 3. Uterine brother children and their descendants. 4. Daughters of full brother‟s sons, how lowsoever and their descendants. 5. Daughters of consanguine brother‟s sons how lowsoever and their descendants. 6. Sister‟s (full, consanguine or uterine) children and their descendants. (iv) Descendants of immediate grand-parents, true or false 1. Full paternal, uncle‟s daughters and their descendants. 2. Consanguine paternal uncle‟s daughters and their descendants. 3. Uterine Paternal uncles and their children and their descendants. 4. Daughters of full paternal uncle‟s sons how lowsoever and their descendants. 5. Daughters of consanguine maternal uncle‟s sons how lowsoever and their descendants.

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6. Paternal aunts (full, consanguine or uterine) and their children and their descendants. 7. Maternal uncles and aunts and their children and their descendants; and, descendants of remoter ancestors how highsoever (true or false). Second kind of distant kindred.—Persons who are unrelated to the deceased by blood, and who still get the inheritance on the failure of blood relations, have been divided into the following four classes: 1. Successors by contract. 2. Acknowledged kinsmen. 3. Universal legatees. 4. The Government. 1. A “Successor by contract” is a person who derives his right of succession under a special kind of contract with the deceased. 2. An “acknowledged kinsman” is a person of unknown descent in whose favour the deceased has made an acknowledgment of kinship or relationship not through himself, but through another e.g., if he acknowledges, a person as his uncle, that is the brother of his father, the acknowledgment will be through father and hence will be valid. But supposing he acknowledges person as his own son, such person will not be an acknowledged kinsman because the kinship is direct and not through another. 3. A “universal legatee” is a person, to whom the deceased has left the whole of his property by will, which can be made only when there are neither any heir of the first kind nor the abovementioned two heirs of the second kind, i.e., successors by contract and acknowledged kinsmen. 4. The Government.—In India in the absence of all heirs, the property goes to the Government, by the operation of law. This law is known as the Law of Escheat. However, under Islamic system, the property will not devolve upon Government by way of inheritance as ultimus heirs, but falls into the bait-uimal (public treasury) for the benefit of Mussalmans. Distant kindred in the Order of Succession Descendants 1. Daughter‟s children. 2. Son‟s daughter‟s children. 3. Daughter‟s grandchildren. 4. Son‟s son‟s daughter‟s children. 5. Daughter‟s great-grandchildren, so on and so forth. Of the above groups each in turn must be exhausted before any member of the next group can succeed. Illustrations (a) Daughter‟s son 2/3 Daughter‟s daughter 1/3 (b) Daughter‟s son‟s son 2/3 Daughter‟s son‟s daughter 1/3 (c) 2 sons of daughter A 4/5 (each taking 2/5) daughter of daughter B 1/5. The rule is when the intermediate ancestors do not differ in their sexes, the property is to be divided among the claimants, per capita according to the rule of double share to the male. (d) Daughter‟s son‟s daughter 2/3 Daughter‟s daughter‟s son 1/3

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The rule is when the intermediate ancestors differ in their sexes, the property is to be distributed to the male ancestor a portion, double that of the female ancestor. The share of a male ancestor will go to the claimant (here daughter) who claims through him (here is daughter‟s son) and the share of the female ancestor will go to the claimant (here is son), who claims through her (here is daughter‟s daughter). Ascendants 1. Falling distant kindred of the first class mother‟s father, being the nearerst relation gets the whole estate. 2. Failing the mother‟s father the estate will devolve upon such of false ancestor in the third degree as are related to the deceased through sharers, i.e., the father‟s mother‟s father (f. m. f.) and mother‟s mother‟s father (m.m.f) and, of these two, the father‟s mother‟s father, as belonging to the paternal side, will take 2/3 and the mother‟s mother‟s father, as belonging to the maternal side, will get 1/3. 3. When there are none of these, the property goes to the repamaining-false ancestors in the third degree such as mother‟s father‟s father and the mother‟s father‟s mother. Since both of them belong to the same (maternal) line, and since the sexes also of the intermediate ancestors do not differ, the mother‟s father‟s father being a male will get 2/3 and the mother‟s father‟s mother will get 1/3. 4. Lastly the remoter false grand-parents succeed subject to the rule of double share of the paternal side. Descendants of parents. 1. Full brother‟s daughter‟s, full sister‟s children and children of uterine brothers and sisters. 2. Full sister‟s children, children of uterine brothers and sister‟s consanguine brcther‟s daughter‟s and consanguine sister‟s children, the consanguine group taking the residue, if any. 3. Consanguine brother‟s daughters, consanguine sister‟s children and children of uterine brothers and sisters. 4. Full brother‟s son‟s daughter (children of residuaries). 5. Consanguine brother‟s son‟s daughters (children of residuaries). 6. Full brother‟s daughter‟s children, full sister‟s grandchildren and grandchildren of uterine brothers and sisters. 7. Full sister‟s grandchildren, grandchildren of uterine brothers and sister, etc. 8. Consanguine brother‟s daughter‟s children, etc. 9. Remoter descendants of brothers and sisters in like order. Of the above groups each in turn must be exhausted before any member of the next group can succeed. Descendants of immediate grandparents (true or false) (i) Paternal and maternal uncles and aunts of the deceased, other than his full and consanguine paternal uncles who are residuaries. (ii) The descendants how lowsoever of all the paternal and maternal uncles and aunts of the deceased, other than sons how lowsoever of his full and consanguine paternal uncles, the nearer excluding the more remote. (iii) Paternal and maternal uncles and aunts of the parents, other than the full and consanguine paternal uncles of the father who are residuaries. (iv) Descendants how lowsoever of the paternal and maternal uncles and aunts of the parents, other than the sons how lowsoever of full and consanguine paternal uncles of the father, the nearer excluding the more remote.

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(v) Paternal and paternal uncles and aunts of the grand-parents, other than full and consanguine paternal uncles of the father‟s father who are residuaries. (vi) Descendants how lowsoever of the paternal and maternal uncles and aunts of grand-parents, other than sons how lowsoever of full and consanguine paternal uncles of the father‟s father, the nearer excluding the more remote. (vii) Remoter uncles and aunts and their descendants in the like manner. Of the above group each in turn must be exhausted before any member of the next group can succeed. Order of Succession 1. If only one class of heirs.—lf a person dies leaving only one class of heirs which does not happen generally, the rules are very simple. In such cases the heirs of that very class take the whole of heritable property. Thus if the deceased leaves only one of the following class of heirs the whole heritable property will be distributed among them. 1. Only sharers, 2. Only residuaries, 3. Only distant kindred, 4. Only successor by contract, 5. Only acknowledged kinsman. 6. Only universal legatee, 7. Only Government. 2. If more than one class of heirs.—It is, when a man dies leaving heirs belonging to more than one class, that the necessity of looking into the rule regarding the order of sucession arises. These rules are given below: (1) Between sharers and residuaries.—Between these two classes, the claim of sharers is satisfied first and if after them, there remains anything it is distributed among the residuaries. (ii) Between sharers and distant kindred—In the presence of a sharer, nothing goes to the distant kindred. It is only when there are neither any sharer nor any residuary that the distant kindred are entitled to inherit. However, when a Sunni Muslim dies leaving a husband or wife and there are no residuaries, the husband or the wife, as the case may be take their full share and the residue is divided among distant kindred. (iii) Between residuaries and distant kindreds.—The above mentioned rule applies, i.e., the distant kindred gets nothing. Principles of succession among sharers and residuaries.—lt is clear from the Tables of Sharers and Residuaries that certain relations entirely exclude other relations from inheritance. This proceeds upon the following principles: (1) whoever is related to the deceased through any person shall not inherit while that person is living. (2) Rule of propinquity, which means that the nearer in degree excludes the more remote. (3) A person excluded may exclude others. 1. “Whoever is related to the deceased through any person, shall not inherit while that person is living”. Thus the father excludes brother and sister because the brother or sister is related to the deceased through father, i.e., without father they would not have existed. Exception.—But there is one exception to this, namely, the mother does not exclude the uterine brothers or sisters though they are related to the deceased through her. (Uterine brother or sister means brother or sister from the same mother, but different fathers).

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2. The nearer in degree excludes the more remote.— The person who is nearer in blood to the deceased excludes the more remote Examples : (i) . Father excludes grandfather. (ii) Mother excludes grandmother. (iii) Son excludes son‟s son. It should be noted that the Rule of Propinquity applies only when the heirs belong to the same class. If they belong to different classes, this rule will not apply. 3. A person excluded may exclude others.—After stating the two principles mentioned above, the Sirajiyyah goes on to say that “a person excluded may, as all the learned agree, exclude others as, if, there be two brothers or sisters or more, on whichever side they are, they do not inherit with the father of the deceased, yet they drive the mother from a third to a sixth.” Thus, if the deceased leaves (i) mother, father and brother or sister or both, the brother and sister, though sister and brother are themselves excluded by father reduce the mother‟s share to 1/6, (ii) father‟s mother and mother‟s mother‟s mother, the father‟s mother though herself excluded by father exclude the mother‟s mother‟s mother. There are five heirs that are always entitled to some shares of the inheritance, and they are in no case liable to exclusion. These are— 1. The child (son or daughter); 2. Father; 3. Mother; 4. Husband; and 5. Wife. Allotment of Shares. (1) Introduction.—After ascertaining which of the heirs of the deceased belong to the class of sharers, residuaries and distant kindred, the question comes of their respective shares. (2) Respective shares of sharers.— 1. First Step.—The first step in making allotment of shares to the sharers to give them their shares as laid down in the table of sharers. 2. Second Step.— The second step in making the allotment of shares is to find out whether the total share of all sharers comes to: 1. more than the heritable property, or 2. less than the heritable property, or 3. equal to the heritable property, or Suppose that the property is Rs. I and there are four sharers each of whom is entitled to 1/2 of the Property, the total of share will come out to be Rs. 2 which is more than the heritable property (Rs. 1). Similarly, the total of shares may be less than or equal to the heritable property. 3. Third Step—If the total share of the sharers is equal to the heritable property the whole property is divided among the sharers and no difficulty arises. But in case where the total shares exceed the property or fall short of it, the necessity for application of certain special rules present itself. These rules are known as the „Doctrine of Return and Increase‟. These are nothing but

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contain rules to increase or decrease, the shares according to the requirements of the case. These have been dealt with under independent Head Nos. 5 and 6. (3) Shares of residuaries.—The residuaries do not get any fixed shares. The residue, if any, is divided equally among them in accordance with their preferential claims which is given in the Table under Head No. 2. In this table we divide the residuaries into four groups, namely, (i) Ascendants, (ii) Descendants, (iii) Descendants of father, and (iv) Descendants of father‟s father how highsoever. Under each group-head we mentioned several heirs keeping this in our mind if we study the following rules, regarding the making of allotment of shares to the residuaries, the points will become clear. The rules are the following: Rule No. 1.—Each preceding residuary excludes all the succeeding residuaries, e.g., an ascendant excludes a descendant in the table, hence in the presence of ascendant, the descendant will not get a share. Similarly, in the case of a full brother and a consanguine sister, the former proceeds the latter in the given table, and the consanguine sister will not get anything in the presence of the full brother. Rule No. 11.—When there is a female residuary taking with the male, the male takes a double of a female‟s share, e.g., a son and a daughter, will take 2/3 and 1/3. Rule No. III.—The only female residuaries are (i) daughter, (ii) son‟s daughter how lowsoever, (iii) full sister, and (iv) consanguine sister. 4 Sharers of distant kindreds—General Rules.—The rules regarding the share of distant kindreds are as follows [See also Head No. 3 under which is given the list of distant kindreds. Rule I.—The first class or distant kindred excludes the second class. Refer Head No. 3. Rule 11.—The nearer in degree excludes the more remote e.g., daughter‟s children exclude son‟s daughter‟s children. Rule 111.—As amongst the member of the same class and of the same degree the children of sharers and residuaries are preferred to those of distant kindreds, e.g., son‟s daughter‟s children are preferred to daughter‟s childrcn. Rule IV.—Subject to above rules, a male, takes a double of a female.

SHIA LAW OF INHERITANCE General principles of inheritance of Shias:- Shia law of inheritance is based on shuffling of heirs who is again based on certain causes for the classification of inheriting heirs. The Sunni system kept intact the pre-Islamic rules of succession, though with some modifications, as adding few heirs, who were commanded by Quran, before and after pre-lslamic heirs. Shia law puts agnates and cognates, i.e., those related through males, on equal footing with those related through women. Against that residuary remained in Hanafi law most important heirs. Thus, Shin law is very different from Sunni law. In other words, like the Hanafis, the Shin does not recognise the

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prior rights of agnates over cognates or of males over females. They considered the Quranic principles of inheritance as a new scheme and in supersession of the pre-Islamic customary principles of inheritance. So, they totally discarded the pre-Islamic system for determining the order of succession. They shuffled all the heirs agnates and cognates, males and females and then classified them for order of succession. General Principles of Inheritance under Shias law (i) According to the Shin law ascendants, descendants and collaterals may be Sharers or Residuaries. The estate of a deceased Muslim devolves on blood relations equally, though among themselves they take per stripes, the females are allotted half the share allotted to the males in each class. There is only one exception to this rule i.e., the rights of husband and wife. (ii) All the descendants were given the first position and among the ascendants only the nearest, i.e., the parents were allowed to inherit with them. The higher ascendants were given the second position and were permitted to inherit with the nearest collaterals, i.e., the brothers and sisters. The remaining collaterals were given the third position. So, three classes of heirs in order of preference were found, (iii) The rule of proximity was observed. Accordingly, the nearest relations were preferred to the remoter within each of the three classes. Who are heirs The heirs of a deceased Muslim include spouse, as ascendants, descendants and collaterals. They fall under the following three categories: (i) Heirs affiliated by marriage or affinity (Zowjeeat) (ii) Heirs affiliated by blood or consanguinity (Nasab) (iii) State by escheat as a successor So, under the Shias law of inheritance, a person entitled to succession on the basis of consanguinity (Nasab) or on the basis of affinity Heir by Consanguinity :- There are three classes of consanguineous heirs: A. The first class consists of: (i) Father and mother (ii) Son and daughter and in their absence their descendants how low soever. B. The second class consists of: (i) Grand-father and grand-mother howsoever in the decree of ancestry (ii) Brother and sister and in their absence their children howsoever low C. The third class consists of (i) Paternal uncles and aunts (ii) Maternal uncles and aunts Heir by Affinity :- In this category, there are two heirs, who are related to each other thorugh marriage, but only one, either the husband or the wife inherits to the other, these heirs are: (i) Husband (ii) Wife. Division of Heirs for distribution of estate :- For the purpose of distribution of estate among the heirs of the deceased, affiliated by marriage or affinity and blood or consanguinity, the Shia law divides them into two categories:

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I. Sharers and their descendants, h.l.s 11. Residuaries and their descendants h.l.s. Shares of Sharers Under Shia Law Sharers are those heirs who are affiliated by blood or marriage. They include Class I and Class II and not Class III heirs. They includes males, females, spouse descendants, descendants and collaterals. The following heirs are Sharers and their shares are of the following: 1. Husband: Without children or lineal descendants, the husband share is 1/2 whereas with children or lineal descendants, the husband share is 1/4. 2. Wife: Without children or lineal descendants, the widow‟s share is 1/4 whereas with children or lineal descendants, the widow‟s share is 1/8. A childless widow gets her 1/4 share only out of the movable properties of the deceased husband. 3. Father: Without children or lineal descendants, the father inherits as Residuary whereas with children, the father‟s share is 1/6. 4. Mother: Without children or lineal descendants or two or more full brother or one such brother and two such sisters or four such sisters with the father, the share of mother is 1/3 whereas with children or lineal descendants or two or more full brother or one such brother and two such sisters or four such sisters with the father, the share of mother is 1/6 5. Daughter: The share of single daughter is ½ whereas share of two or more daughters is 2/3 to be inherited collectively. However, in the presence of son, the daughter becomes Residuary. 6. Full Sister: The share of single full sister is ½ whereas share of two or more sisters is 2/3 to be inherited collectively. But the full sister gets her share only in the absence of parents, lineal descendant, full brother and father‟s father. However, in the presence of full brother and father‟s father, the full sister inherits as a Residuary. 7. Consanguine Sister: The share of single consanguine sister is 1/2 whereas share of two or more consanguine sisters is 2/3 to be inherited collectively. But the full sister gets her share only in the absence of parents, lineal descendant, full brother, full sister, consanguine brother and father‟s father. However, in the presence of consanguine brother and father‟s father, the consanguine sister inherits as a Residuary. 8. Uterine Brother: The share of single uterine brother is 1/6 whereas share of two or more uterine brothers is 1/3 to be inherited collectively. But these shares are inherited by them only in absence of children or lineal descendants and parents. 9. Uterine Sister: The share of single uterine sister is 1/6 whereas share of two or more uterine sisters is 1/3 to be inherited collectively. But these shares are inherited only in absence of children or lineal descendants and parents.

From the above discussions, the following facts are significant: (a) Out of the nine Sharers mentioned above, first two are heirs by marriage and the next three heirs, i.e., father, mother and daughter are heirs through consanguinity and belong to Class I. The remaining four heirs belong to Class II. And in Class III, there are no Sharers.

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(b) The list of Sharers under Shin law is the same as that under Sunni law except that under the Shin law true grand-father, true grand-mother and son‟s daughter are not recognised as Sharers. According to Shin law these heirs are Residuaries. (c) According to Shia law the descendant‟s h.l.s of the Sharers are also regarded as Sharers. Thus, the descendants or daughter, full sister, consanguine sister, uterine brother and uterine sister are also Sharers. However, there is an exception to this rule. The descendants of husband, wife, father and mother are not regarded as Sharers. Exclusion Rules: The rules of exclusion of heirs or class would be followed in following manner: Rule (1): If heirs of Class-I are present (even a single person) they would exclude Class-II and III heirs. And as such Class II heirs would exclude Class III heirs. Rule (2): Surviving heirs from marriage would inherit simultaneously with any other heirs of any class. Rule (3): If heirs from Class-I and II are present, they would inherit together. Rule (4): The nearer in degree would exclude the remote among each of the three classes. Rule (5): The heirs of full blood would exclude half blood in Classes II and III.‟ To understand the difference between Hanafi and Shin rules of exclusion take the following examples: (i) Mother, daughter, brother are heirs: (ii) Full paternal uncle‟s son and mother‟s father DISTRIBUTION OF ESTATE AMONG HEIRS OF CLASS I :- Class I includes husband or wife and parents, children, grand-children and also the remoter lineal descendants of the propositus. When the inheritance opens, the heirs of this class are entitled to inherit first of all. For distribution of property among the heirs of this class, following procedure is adopted. First of all, the shares are allotted to the husband or wife as case may be. Next the shares are allotted to those heirs who inherit only as Sharers. Thereafter, the residue if any is divided among the Residuaries. In cases where there is residue but there are no Residuaries, the doctrine of Return (Radd) is applied. Similarly, where the shares are in excess of the property, the property is distributed by applying the doctrine of Increase (Aul). For example, A Shia Muslim dies leaving her husband, mother and father. The allotment of the shares among them are: As husband and mother are Sharers and Father is Residuary (because there are no children). So, the share of husband is 1/2. Mother without children share is 1/3 of the estate. Father without children is Residuary and gets the residue which remains after allotment of the shares of husband and mother. The residue is 1 — (1/2 t 1/3) = 1/6 which goes to father. Accordingly, the respective shares of each heirs is as under: Husband-1/2; Mother-1/3; Father-1/6 = 6/6 = 1 Principles of Representation and Stirpital: These principles are connected with the rules of distribution.

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(i) Representation: The Muslim law does not recognize principle of Representation because the principle of survivorship is not known to Muslim law. The heirs inherit as tenants-incommon and not joint tenants.‟ The word „representation‟ is used in several meanings. One meaning of the word could signify representation of estate of the deceased. Under this meaning „personal representative‟ of the deceased would be recognised as execution and the administrators. The Indian Succession Act explains such type of representatives, which is not applicable here. The second meaning of the word „representation‟ would signify a process where a person would „represent‟ some other person, through whom he or she is claiming the share. Under Hindu law the process of succession is based on such representation. This second meaning would serve the purpose of discussion in relation to Muslim law. (ii) Stirpital Succession: This means a succession by stock, which is succession that in each of the three classes takes place as per stripes and not per cci pita. The question-what are the individual shares of heirs or the quantum of share, rules of Stirpital succession are applied. According to Ameer Au,1 „representation‟ as a term for explaining situations should not be used because the division of shares under Muslim law is not per capita but per stirpes. DISTRIBUTION OF ESTATE AMONG HEIRS OF CLASS II Classification of Class II heirs: In the absence of heirs belonging to Class I, Class II heirs are entitled to inherit in deceased‟s property, along with spouse, if present. The heirs of Class II are further divided in two sub-classes: (a) Paternal and maternal Grand-parents how high-soever, and; (b) Brothers, sisters and their descendants how low-soever. DISTRIBUTION OF ESTATE AMONG HEIRS OF CLASS III Priority of succession: In case here are no heirs belonging to Class I and II, the heirs (uncles and aunts) of this class would inherit the estate in following order: (i) Uncles and aunts of the deceased, whether paternal or maternal. (ii) The descendants (h.l.s) in absence of uncles and aunts, paternal or maternal. The nearer excluding remote. (iii) Uncles and aunts of parents, maternal and paternal. (iv) Descendants (h.l.s) of parents maternal and paternal uncles and aunts. (v) Uncles and aunts of grand-parents, maternal and paternal. (vi) The descendants of uncles and aunts of grand-parents (h.l.s), paternal and maternal. Nearer excluding remote. (vii) Uncles and aunts and their descendants of remoter degrees. Rules of distribution among Class III Rules 1: Paternal side takes 2/3 and maternal side 1/3, if both sides present. Rule 2: 2/3 share of paternal side uncles and aunts would be distributed among them as if they were brothers and sisters of the deceased. It would distribute in following manner: (a) If there is one uterine paternal uncle or aunt, he or she gets 1/6.

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(b) If there are more than one paternal uterine uncles and aunts they get 1/3 which would be distributed equally among them irrespective of sex. Rule 3: The remaining estate would be divided among full paternal uncles and aunts on the basis of double to the males of female share. In absence of this group the remaining part would go to consanguine paternal uncles and aunts, the distribution taking place on same rules. Rule 4: The division among maternal uncles and aunts of 1/3 part would take place as: (a) If there is only one maternal uterine uncles and aunts, he or she gets 1/6. (1) If there are two or more, then they get 1/3 of 1/3. The division is equal in both cases, irrespective of sex. (c) The remaining 2/3 of 1/3 or 5/6, as the case may be, would be divided among full maternal uncles or aunts, in case of their absence the remaining share would go to consanguine uncles and aunts. Rule 5: Where either maternal or paternal side is absent, the other side gets the whole. The rule of distribution of estate among them can be understand through following illustrations: 1. A Shia Muslim dies leaving full paternal uncle and full paternal aunt. The respective sharers of these Residuaries are in the ratio of 2: 1, as if they were brothers and sisters. Accordingly, the respective shares are of the following: Full paternal uncle — 2/3; and full paternal aunt — 1/3. 2. A Shia Muslim dies leaving uterine maternal uncle and full maternal uncle. Here, the uterine maternal uncle would inherit as if he was uterine brother and therefore, his share is 1/6. The residue 5/6 goes to full maternal uncle. Accordingly, the respective shares are of the following: Uterine maternal uncle -1/6 and full maternal uncle — 5/6. Doctrine of Increase (Aul) :- According to Muslim law, the share of various sharers are fixed. Where there are several sharers co-existing, it sometimes happens that the total of their respective shares exceeds unity (one). Thus, suppose that the deceased leaves behind a husband and two full sisters. Ordinarily, the husband will take ½, as there is no child or child of a son how lowsoever, and the two sisters together will take 2/3, as there is no son. 1/2 + 2/3 = 7/6 which exceeds unity, and the property falls short in distribution. How then is the deceased‟s property to be divided? The difficulty is solved by increasing the common denominator to the sum of the numerators, and thus reducing the fractions without disturbing the proportion between them. Thus, in above illustration, on reducing the fractions to the common denominator one get 1/2 = 3/6 and 2/3 = 4/6. Thus, with the common denominator the shares are: husband-3/6 and two sisters = 4/6. The sum of the numerators is 7. Now, the common denominator is increased to the sum of the numerators (i.e., 7). On doing this, the shares would be as follows: husband: 3/7 and two sisters 4/7 (3/7 + 4/7 = 1). It may be noted that his doctrine is called „increase‟, not because the shares are increased, which is quite the opposite, the very object of the doctrine being the diminish the shares, but because the unity is reached by increasing the denominator of the fractional shares. In other words, if it is found, on assigning their respective shares to the sharers, that the sum total of the shares exceeds unity, the share of each sharer is proportionately diminished by reducing the fractional shares to a common denominator and increasing the denominator, so as to make it equal to the sum of the numerator.

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Difference between Shia and Sunni law of „Increase‟ According to the Sunni law, the doctrine implies proportionate reduction of all the shares. According to the Shia law, on the other hand, it implies the reduction of the shares of the daughter or daughters, or full or consanguine sister or sisters alone. Other heirs do not suffer. Doctrine of Return (Radd) :- The doctrine of return will apply when there are no residuaries. According to this doctrine, when after distribution of estate among the Sharers, some residue is left and there are no residuaries to take it. Then the residue is distributed among the Sharers in proportion to their shares. Thus, suppose A dies leaving behind his mother and a son‟s daughter (both sharers) and no residuaries. Their share respectively are 1/6 and 1/2, this together makes 2/3 of A‟s property, leaving 1/3 of his property as surplus, with no residuary to take it. In such a case, the surplus reverts to the shares in proportion to their shares. This is done by reducing the fractional shares to a common denominator and by decreasing the denominator of those shares, so as to make it equal to the sum of the numerators. Thus, in this illustration, the shares of the mother and the son‟s daughter are 1/6 and 1/2 respectively. Reducing them to the common denominator, gives 1/6 and 3/6. The sum of the numerator is (1 + 3) 4. By decreasing the donominator of the shares to make it equal to the sum of the numerators, one arrives at 1/4 and 1/4. These will be the shares of the two sharers. Thus, the Return is the apportionment of surplus among the sharers when the shares do not exhaust the property and there are no residuaries. Exception of the Rule :- There is following exception to the right to reverter of the sharers. 1. Husband or Wife: First the husband or wife of the deceased is not entitled to share in the return, so long as there is any other heir. If there are any other sharers, they will share the return among themselves, without giving his or her share of the return to the husband or wife. Even when there is no other sharer, the residue will go to distant kindred, if any. It is only when there is no other heir belonging to any of the three classes of heirs, i.e., sharers, residuaries or distant kindred, and the husband or wife is the only heir, and then he or she will take the residue by return, i.e., the whole of the estate. 2. Mother: The exception of the rule is mother. The mother is excluded from return in the presence of following heirs: father, one daughter, two or more full or consanguine brothers or brother or one such brother and two such sisters or four sisters. 3. Uterine brothers and sisters: The uterine brothers and sisters are excluded from return in the presence of any full sister. They will not be excluded when there are consanguine brothers and sisters and in such a case all of them share proportionately to the return. A dies leaving being a uterine brother UB, a uterine sister US and a full sister FS then UB will get 1/6, US will take 1/6, FS will take 1/2. The sum total of their share is 1/6 + 1/6 + 1/2 = 5/6, so the surplus 1 — 5/6 is left which will go to FS to the exclusion of [TB and US, so FS share will be 1/2 + 1/6 = 2 /3. 4. All other heirs: When there is any heir entitled to inherit by double relationship, then all other heirs are excluded from return. DIFFERENCE BETWEEN SUNNI LAW AND SHIA LAW OF INHERITANCE The significant point of difference between the two system may be following:

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1. Murderer: Under Sunni law, a person who causes the death of the propositus either intentionally, negligently or accidentally is excluded from inheritance whereas under Shia law, a person may not be excluded from inheritance if he has not caused death intentionally. 2. illegitimate Child: Under Sunni law, a illegitimate child is entitled to inherit the properties of the mother whereas under Shia law, illegitimate child is treated as mullivs filius and is not entitled to inherit any property either from father or from mother 3. Child in the womb: Under Sunni law, where the child in womb totally excludes other heirs, then the whole estate must be reserved and where the child in womb excludes only some heirs after paying the shares of those heirs which are not excluded rest must be reserved whereas under Shia law, the share of true sons must always be reserved. 4. Movable or immovable property: Under Sunni law, a childless widow inherit 1/4 out of movable as well as immovable property whereas under Shia law such widow inherits 1/4 only from the movable property. 5. Principle of Representation: Under Sunni law, principle of representation is not recognised. So, son of a predeceased son is excluded whereas under Shia law, this doctrine is recognised and the son of a predeceased son represents his father. 6. Preference of Agnates to cognates: Under Sunni law, agnatic heirs has been given preference over cognates heirs whereas under Shia law, the agnates and cognates have been placed on equal footing. 7. Classes of heirs: Under Sunni law, there are three classes of heirs, they are as (a) Sharers, (b) Residuaries and (c) Distant kindreds whereas under Shia law, the classification of heirs is only two, they are as (a) Sharers, and (b) Residuaries. 8. Sharers: Under Sunni law, there are twelve sharers whereas under the Shia law, number of Sharers are only nine. 9. Doctrine of Increase (Aul): Under the Sw‟zni law, doctrine of Increase, the excess share is deducted from the shares of all the heirs in proportion of their normal shares whereas under ShEa law, doctrine of Increase, the excess is deducted only from the shares of daughter or sister. 10. . Doctrine of Return: Under Sunni law, doctrine of Return, all the surviving heirs, except husband or widow, participate in return of the excess property whereas under Shia law, besides husband or widow, in certain cases the mother and uterine brother or uterine sister also do not participate in return. 11. Under Sunni law, succession among the heirs of one class but of different branches is per capita whereas under Shia law, succession among the heirs of a class but belonging to different branches is per strips. 12. . Under Sunni law, the rule that nearer excludes the remoter is applied only in respect of agnatic heirs whereas under Shia law, the rule of nearer excludes the remoter is applicable to all the classes of heirs. 13. Doctrine of Primogeniture: Under Sunni law, Doctrine of primogeniture is not recognised and an eldest son has no preferential right in respect of any property.

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