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CHANAKYA NATIONAL LAW UNIVERSITY

A Project On

Critical study between Hanafi & Shia Law as to Succession

SUBMITTED TO: - Mr. Shaiwal Satyarthy FACULTY: - Famili Law II

Made By: Nidhi Navneet 2nd year (4th sem) ROLL No.570 B.A.LL.B. (Hons)

Critical Study between Hanafi & Shia Law as to Succession

ACKNOWLEDGEMENT I am feeling highly elated to work on the case law “Critical Study between Hanafi and Shia Law as to Succession” under the guidance of the Faculty of Family law II, Mr. Shaiwal Satyarthy. I am very grateful to him for his exemplary guidance. I would like to enlighten my readers regarding this topic and I hope I have tried my best to pave the way for bringing more luminosity to this topic.

I also want to thank all of my friends, without whose cooperation this project was not possible. Apart from all these, I want to give special thanks to the librarian of my university who made every relevant materials regarding to my topic available to me at the time of my busy research work and gave me assistance. And at last I am very much obliged to the God who provided me the potential for the rigorous research work.

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

----------Thanking you Nidhi Navneet C.N.L.U.

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................................................................................................................................................6 Customary Principles of Succession ...................................................11 Residuaries: Distribution of Assets ..........................14 Doctrines of Aul (increases) and Radd (return) ...............16 The Shia Scheme of Heirs ......................19 3.................................23 Points of difference between Sunni and Shia Law as to succession ....8 HANAFI LAW OF SUCCESSION ....................................................3 INTRODUCTION ....................................................... Distribution of Assets among Class I heirs: ..Critical Study between Hanafi & Shia Law as to Succession CONTENTS RESEARCH METHODOLOGY ...............................................6 Islamic Principles of Succession .................................... Distribution of Assets among Class II heirs:............................................................................6 The Hanafi Law: General Principles ..................................................... Rules of Distribution of Assets among the Uncles and Aunts: .................................................................................................................. 4..........................................................................................................................9 Distribution of Assets among the Sharers and Residuaries ...15 SHIA LAW OF SUCCESSION ........................................................................................ Distribution of Assets among Class III Heirs: ...........................................................................17 1........................................................................... 3........21 5....20 4.....21 6...................................4 GENERAL PRINCIPLES OF SUCCESSION ............................................................7 Ithana Asharia Law: General Principles ......................................................................distinction between : .....................................................26 2 ...................................................22 Sunni and Shia interpretation of Koran....................... 5..16 Distribution of Assets ......................................................................................................9 1.................. Doctrines of Aul (increase) and Radd (return): ..............................................................18 2.........21 DISTINCT RULES OF SUCCESSION UNDER SHIA AND SUNNI LAWS ................................ Distribution of Assets among the descendants of Uncles and Aunts: ............................................ Heirs under Hanafi (Sunni) Law .13 Distribution of Assets among the Distant Kindred .............................................................................23 CONCLUSION ..................25 BIBLIOGRAPHY .......................................................... 2............................

Sources of Data The whole project is made with the use of secondary source. Sunni and Shia Law are to be ascertained through this project work. Websites Mode of Citation The researcher has followed a uniform mode of citation throughout the course of this research paper. the researcher is providing the descriptions of the existing facts.. Books 2. The following secondary sources of data have been used in the project1. 3 .Critical Study between Hanafi & Shia Law as to Succession RESEARCH METHODOLOGY Research Methodology The project is basically based on the doctrinal method of research as no field work is done on this topic. Aims & Objectives To do an in depth analysis of the relation between the two branches of Muslim Law on the law of succession of the property. the researcher has opted for Descriptive and Explanatory type of study as in this topic. Type of Study For this topic. The different rules regarding the heirs upon whom the property is about to devolve and the different rules regarding the distribution of property among those heirs in both Hanafi i.e.

concretised and modified by the revelations and the traditions of the prophet. Due to this. the Shia law of succession and the Hanafi law of succession. the law of succession falls into two broad streams. The twin doctrines of the Mitakshara school of Hindu law. Contrary to popular belief. Succession opens only on the death of the ancestor. and the Qiyas. the Hindu Succession Act. from all of which rules pertaining to succession can be gleaned. Also. the Parsi Succession Act. Lexis Nexis Butterworths Wadhwa at page 505. 1933 All 206. It was in existence even prior to that. Sirajuddin. the right of heir-apparent does not come into existence till the death of the ancestor. viz. and then alone the property vests in. Apart from those issues which are directly addressed in the Holy Book. It is based on the patriarchal organisation of the family. the Sunnas. 2 Abdul Rashid v. son‘s birth right and survivorship (now abolished) are not recognised in muslim law. we have so many different succession laws. As far as Muslims are concerned. Koranic revelations are not the starting point of Muslim Law. Both these laws of succession form part of the common law of India and are recognized as having the force of law by virtue of the Sharia't Laws (Application) Act. the heirs. ‗Family Law Lectures II‘. In Islamic law distinction between the joint family property and the separate property has never existed. each purporting to reflect the diverse and differing aspirations. it is pertinent to note here that laws of Succession under Muslim Law are said to be derived from the customs and usages prevalent among the tribes of Arabia before the revelations of the Quran. The primary source of the Muslim law of succession flows from the Holy Koran. but it was systematized. Poonam Pradhan Saxena. 1 Dr. in which the buttressed some near cognates side by side with agnates. (3rd ed). customs.2 Since under Muslim law all properties devolve by succession. as supplemented and modified by the Koranic principles and the Hadis of the prophet.1 The Muslim law of Succession is a superstructure constructed on the foundation of pre-Islamic customary law of succession..Critical Study between Hanafi & Shia Law as to Succession INTRODUCTION The law of succession in India falls within the realm of personal law. and in India Muslim law does not recognize the joint family property. for ex. there are the Ijmas. 4 . etc. and mores of the community to which the statute in question applies.

But the Shia law recognized the doctrine of representation for the second purpose. for they are one-half of useful knowledge‖.. Tayabji observed: ―the Muslim Law of succession has always been admired for its completeness as well as the success with which it has achieved the ambitious aim of providing not merely selection for the single individual or a homogenous group of individual. 800..e. for determining quantum of shares in certain cases. This is not confined to descendants but is also applied to ascendants. Prophet Mohammed said: ―Learn the laws of succession and teach them to the people. and (ii) for determining the quantum of share of an heir or a group of heirs. Under the Hanafi law. 5 . S's 1/3 will go to A. deceased aunt. It is a different system of law. The result under the Shia law is also the same. B and C each taking 1/9. S1 and S2 will come to1/3 each. B. then the distribution of assets will take place not in accordance with grandsons. i. The doctrine of representation and the striptal succession for the purpose of calculating the shares of certain heirs is the basic principle of the Shia law and is applied throughout.. on whom the estate of deceased should devolve by universal succession.3 About the Muslim law of succession. deceased daughter. with the result that the son will take the entire property and no grandson will take any share. the descendants for the deceased son. the division of property takes place according to the stock. are all covered by the doctrine of representation. X and Y from a predeceased son S1. deceased sister. each will take 1/6 share in the assets. the doctrine of representation is utilized for two purposes: (i) for determining the heirs. if they are heirs. Y and Q.Critical Study between Hanafi & Shia Law as to Succession The Muslim law of Succession is a unique aspect of Muslim Law. if P dies leaving behind three grandsons. at the.e. For instance. no aspect of the doctrine of representation is recognized. deceased uncle. In this example. the share of S. C. B and C from a son S. places where branches bifurcate. and a grandson Q from a predeceased son S2. Tayabji (4th ed). The per stripes rule means that where there are branches. Under the Hanafi law each grandson will take per capita. 11. S1's 1/3 will go to X and Y each taking 1/6 and S2's 1/3 will go to Q. i. X. but for adjusting the competitive claim of all the nearest relations‖. deceased brother. i. A. A. Thus. but in accordance with sons.4 Under Hindu law. and two grandsons. 3 4 Sirajyyah (2nd ed).e.

and in Islamic Principles which are the newer laws based on the Quranic principles. the descendants were preferred over ascendants and. and a son of a predeceased. females were excluded from Succession. in the presence of a son. taking per capita. Firstly. being equal. For example. Thirdly. Thirdly. is entitled to inherit to each other. Fourthly. where there were more than one male agnates of equal degree. some near females and cognates are also recognized and enumerated as heirs. sister or a daughter's son or sister's son could never succeed to the property. Shia and Sunni Laws represented by the Ithna Asharai Sect of Shia and Hanafi Sect of Sunni laws. Fourthly. Thus. brother could not. all of them inherited the property and shared it equally. i. comradeship-in-arms. Islamic Principles of Succession The Prophet interposed the following few principles on the aforesaid principles of customary law of succession. so were cognates. who are 6 . a daughter or a. father could not succeed. the law of Succession was based on. For instance. what is called. and the grandson was totally excluded. then the son inherited the entire property. inherit. Secondly. Similarly. After allotting the specified share to the newly created heirs. Son. Secondly. if a Muslim died leaving' behind a son. Fifthly. Customary Principles of Succession In the pre-Islamic Arabia. The four basic principles of the pre-Islamic law of succession were: firstly the nearest male agnates or agnates succeeded to the total exclusion of remoter agnate. in the presence of father. if a person died leaving behind three brothers. and. even the wife and the children were excluded from Succession. and not to their exclusion. on this basis. the husband and the wife. the newly created heirs inherit the specified shares along with customary heirs. all of them succeeded and each took one-third of the estate.e. The general principles can again be divided into the general principles of the two branches of Muslim Law. the newly created heirs (those who were not entitled to inherit under customary law) are given specified shares.Critical Study between Hanafi & Shia Law as to Succession GENERAL PRINCIPLES OF SUCCESSION The general principles of Succession can be broadly divided in Customary Principles which are age old principles based on customs followed by the Arabs even prior to the revelations of Quran. the parents and certain other ascendants are made heirs even when there are descendants. Thus.. ascendants over collaterals.

Critical Study between Hanafi & Shia Law as to Succession called Sharers. but merely amended and modified the customary law of succession so as to bring it in conformity with the Islamic philosophy which recognised those persons who were not heirs under the customary law as heirs (called sharers or the Koranic heirs) and specific shares have been allotted to them. For instance. a female agnate (as specified -in the Koran) near to a male agnate (as specified under the customary law). the customary heirs are not deprived of their right of Succession in the estate of the deceased. and thereby. the former will take 1/2 and the brother will take the residue which is 1/2. the daughters together will take 2/3 and the brother will take the residue which is 1/3. In this situation 7 . Thus. whatever is left (residue) and the scheme is so laid down that something is usually left-goes to the customary heirs who are called Residuaries. It should also be noticed that most of the newly created heirs are the near blood relations of the deceased who were ignored in the customary law. If the deceased had left two daughters and a brother. The Hanafi Law: General Principles The Hanafis interpret the principles of customary law and Islamic law in such a manner as to blend them together in a harmonious manner. The Quran did not create a new structure of law of succession. The Koranic succession takes the agnatic principles further by recognizing the right of female agnates. (ii) The Koranic heirs and the customary heirs may be equally near to the deceased. is retained. if A. dies leaving behind a widow. then W will take 1/8 as a specified share and S and SI will take the residue. For instance. This means that the basic structure of customary succession. then. 7/8. In such a case double portion is given to the customary heir. W and two sons S and S1. a Muslim. when a deceased has left a daughter and a brother. but only a portion out of the estate is taken out and given to the heirs enumerated in the Koran. i. two situations came in view: (i) the Koranic heir may be nearer to the customary heir.e.. the rule of agnatic preference over cognates. doesn‘t deprive a male agnate of his share and he gets the residue. In such a case a specified portion of the estate is given to the Koranic heir at the first instance and then whatever is left to be given to the customary heir. On examining the rights of the Koranic heirs vis-a-vis the customary heirs. is allowed to take a share.

are also included. Thus. The Hanafis have so interpreted the Koranic rules that the customary heir‘s right to Succession is not affected. then each take 1/6 of the estate. Sometimes the customary heirs are also required to share the residuary estate with the Koranic heirs. if the heirs of the same class differ from each other in their sex. no residue of the estate is left for them. The modifications thus made by the Koran as interpreted by the Hanafis are restricted to agnates. The Shia law recognises the concept of Doctrine of Representation not for determination of heirs but for determination of shares of each heirs. For instance. This also results in descendants. Ithana Asharia Law: General Principles The basic differences between the Ithana Ashari law and the Hanafi law arise on account of the fact that the latter interpret the Koranic rules strictly and hold that the Koranic rules are nothing but transposition of certain rules on the customary law of succession. but was disqualified under the customary law been made to rank equally with the customary heirs in respect of the residue of the estate after the prior claim of the Koranic heirs are satisfied. though among themselves they take per stripe: the females are allotted half the share allotted to the males in each grade. though a slice of the estate is taken away for the Koranic heirs. As to the rights of heirs vis-a-vis each other. such as uterine brother and uterine sister. and in that process. ascendants and collaterals inheriting side by side. Under the Hanafi law. if a Muslim dies leaving behind father and mother. When the sons of a predeceased son are about to inherit the property they will get as per capita from whatever share their father is to get if he been alive through representing their deceased father as one of the heir of property.Critical Study between Hanafi & Shia Law as to Succession the Koranic heir who is a female of equal proximity with the customary heir. the Ithana Ashari interpretation of the Koranic rules does not recognize the prior rights of agnates over cognates or of males over females. they inherit equally and the principle of male taking twice the share of a female does not apply. the general rule of distribution of the estate is per capita and not per stripes. With the exception of the rights of husband and wife. with a few exceptions where under some cognates. while the former interpret the Koranic rules so widely as if they lay down an independent scheme of succession. the Shia law lays down that the estate of the deceased devolves on blood relations equally. 8 . sometimes.

9 . acknowledged kinsmen (person of unknown descent.e. Sharers are the heirs who were earlier excluded but were introduced as heirs by Koranic revelations. then the spouse will take his/her fixed share as a sharer and the rest of the property would be taken by the Distant kindred. The property in the first instance is to be distributed among those sharers who are entitled to get the property. and (ii) to what share the heirs are entitled. son‘s daughter. Related heirs are further sub divided into three groups viz. the Residuaries take the entire estate. Related heirs and Unrelated heirs. successor by contract (gets the property under a contract). In the absence of the Sharers. how low so ever. Residuaries and Distant Kindred. Muslim lawgivers have gone into details in laying down the categories of the persons who are entitled to participate in the Succession. i. the Sharers are to be given their share first. if either of the spouses is present i. but the deceased makes an acknowledgement of kinship in his favour) and universal legate (recipient of the whole property of the deceased by will).. Their shares are fixed. Relations by blood – a. They may be stated thus:   Relations by affinity or marriage – includes wife and husband. in absence of the residuaries. and the respective shares to which each category of heirs are entitled to receive. the estate goes to the State (as an heir by Escheat). and then the residue is to be distributed among the Residuaries. that comprise only blood relatives with the exception of surviving spouse of the deceased. the estate devolves on the Distant kindred. In their absence. The rule has one exception. 1. two questions that arise are: (i) who are the heirs of the deceased.Critical Study between Hanafi & Shia Law as to Succession HANAFI LAW OF SUCCESSION Under any law of intestate succession.e. The second category of unrelated heirs comprises three heirs viz. The Sharers are twelve in number. Among the heirs. In the absence of both the Sharers and the Residuaries... viz. Female agnetic descendants – includes daughter. Sharers... the Heirs are divided into two broad categories. Heirs under Hanafi (Sunni) Law Under Sunni law. widow or the widower.

uterine paternal uncles and their (of all of the above) children. consanguine or uterine). and children of sisters (full consanguine and uterine)] and descendants of immediate grandparents [including full and consanguine paternal uncle's daughters. For the purpose of distribution of assets among them. the better classification of distant kindred would be into: (i) descendents. how low so ever and their descendants without any limit are included. there are: (a) female agnates.Critical Study between Hanafi & Shia Law as to Succession b. full or consanguine paternal uncle‘s son or son‘s son]. full sister. Under the category of descendants. and (iii) collaterals. daughters of their son‘s. ‗Muslim Law in India‘. paternal aunts (full. son's daughter's children. full brother‘s son or son‘s son. The Residuaries are classified into: (i) descendants. and thus they become residuaries and are known as Koranic Residuaries with another. Maternal uncle and Aunts and their children]. both males and females. at page 223 -24. 5 Paras Diwan. The number of collaterals is limitless. [son and son‘s son. The collaterals are further divided into descendants of parents [including full and consanguine brother's daughters and uterine brother's children. Male ascendants – includes father and true grandfather. Female agnetic collaterals – includes full sister and consanguine sister. Under the category of Ascendants. Female ascendants – includes mother and true grandmother. c. although being among the sharers do not take their specified shares if a residuary equal rank co-exists. (ii) ascendants. Daughter. how low so ever] (ii) Ascendants [father and true grandfather] and (iii) collaterals which are descendants of father [full brother. consanguine brother son or son‘s son] and that of a true grandfather [full or consanguine paternal uncles. 10 . without any limit as to degrees. son‘s daughter. full sister and consanguine sister.5 Distant kindred are all those blood relations of the deceased who have not found a place either among the sharers or residuaries. son‘s son‘s daughter. are included. and (b) cognates. d. false grandfather and grandmother how high so ever are to be included. consanguine brother or sister. all the descendants of all the ascendants. daughter's children and their descendants how low so ever. daughters of full brother's and consanguine brother‘s sons. e. Allahabad law agency. Cognatic collaterals – includes uterine brothers and uterine sisters.

Similarly. Thus. being a substitute. Distribution of Assets among the Sharers and Residuaries The peculiarity of the Muslim law of Succession is that although the Sharers are class I heirs and the Residuaries are class II heirs. Next to them are "substitutes". wife. Under no circumstances can he be excluded from Succession. father and mother. In the Hanafi scheme of Succession. since he is a distant kindred. depends upon the circumstances of each case. These heirs are called primary heirs. Thus. Among the residuaries the descendants are preferred over ascendants and collaterals. the following five heirs are always entitled. if a Muslim dies leaving behind a mother. they together share the property. how low so ever. husband. then son alone will inherit. is always excluded by the father. When all the heirs claiming property are equally near. Thus. namely. then the widow takes 1/8. a son.e. In case of more than one widow. then the husband takes 3/4 as a sharer and the residue of 1/4 goes to the children and in absence of children. There are the substitutes of the last three primary heirs only which are child of a son. H will take 1/2 as a sharer and F will take the remaining 1/2 as residuary. the remaining property goes to the residuaries. and the residue (i.. the 11 . The Kuran had devolved 1/6 share for father when there are children of deceased. DS. DS will be totally excluded from the Succession. and in absence of children or any agnatic descendants.Critical Study between Hanafi & Shia Law as to Succession 2. to a share in the estate. they share equally with this rider that a male heir (generally) takes double the portion of a female heir. a Muslim female dies leaving behind her husband. he gets ½. Among the heirs of a class which one of them will take the estate. true grandfather. each will get equal. if a Muslim female dies leaving behind her husband and children. and ascendants are preferred over collaterals. After shares have been allotted to sharers. 7/8) goes to children but in absence of children she takes 1/4. child. though both are Residuaries. Father and True Grandfather: The father is always an heir. H and her father F. The general rule of preference is that a nearer heir excludes a remoter one. and in what portion. S and a daughter's son. and the grandson will be excluded. Husband and Wife: If a Muslim male dies leaving behind a widow and children. if a Muslim dies leaving a son and a grandson (son's son or a son from a predeceased son). then mother as sharer will take 1/6 and S will take the remaining 5/6 as residuary. and true grandmother. M. The true grandfather.

the mother takes 1/3 as sharer. Mother and True Grandmother: Mother is never excluded from Succession. SD will not take any share.e. M. The remaining 2/3 will go to D and D1. since there are no children of the deceased. D will be excluded because of the father as sisters don‘t take shares in property in presence of father. a mother. SD. two daughters D and D1. F will take the remaining 2/3. nearer maternal or paternal grand mother.. when there is no son and otherwise becomes a residuary. Illustration: P. father and nearer true grandfather. The mother takes 1/6 share if a Muslim dies leaving behind two sisters. In this situation the position of the grandfather (in the absence of the father) will be the same. The son's daughters take per capita and not per stripes.e. consanguine or uterine). She takes 1/3 where there are no children. more than one daughter or higher son‘s son and the share reduces to 1/8 when there is only one daughter or one higher son‘s daughter. In the presence of daughters. or one brother and a sister (full. She becomes a residuary when there is an equal son‘s son. S will have 2/6 and S1 will have 2/6. Daughter and Son's Daughter how low so ever: The daughter takes a share of ½ of the property (for more than one daughter. for the same reason. Under the Hanafi law the son's daughter inherits in her own right. M. and 1/6 in presence of the children. and not as representative of the son. and the rest will go to D. and the father takes 2/3 as residuary. FF will be excluded by F and MM will be excluded by M.Critical Study between Hanafi & Shia Law as to Succession grandfather takes as a residuary. each gets 2/3) in the estate of the deceased parent. S and a daughter D. M will take 1/6. Where a Muslim dies leaving behind a mother and a father. a Muslim dies leaving behind father F. is sometimes conferred to father and he takes in the capacity of both. between them they will share equally. M will take 1/6 as sharer. i. she becomes a residuary in presence of a full brother and she is to be entirely 12 . a sister PD and father F: Mother will take 1/3. Dual capacity i. as a sharer and a residuary. a grandfather FF. The son's daughter having ½ of the property as share (2/3 for more than one daughter) is excluded completely in presence of a son. Sisters: The sister is a sharer where one takes 1/2 share and more than that take 2/3 each. But. where D will have 1/6. F will take 1/6. Illustration: P dies leaving behind his mother M. S and S1 as residuaries.. a grandmother MM. sons son. and a daughter of a predeceased son. Illustration: P dies leaving behind his mother. since he is a substitute for father. The true grandmother is to be excluded completely in the presence of mother. 1/3 each.

full brother and more than one full sister. Residuaries: Distribution of Assets The Residuaries inherit the property when the shares of sharers had been given to them. H will take ½ and FD will take ½. the Himariyya. PS. one uterine brother UB. CS2. where a Muslim female. 13 . Illustration : P dies leaving behind a husband. a widow died leaving behind a full sister and two daughters. UB. consanguine sister is excluded but in case of only one sister.e. how low so ever. the full brother. son of a child how low so ever. then consanguine sister takes 1/6. father or a true grandfather. (a) The uterine brother and uterine sister are excluded by a child. FD will take one-half. UBI and one full brother. CS3. But then the entire estate was exhausted. The females enlisted in Koranic residuaries succeed as residuaries when they co-exist with male heirs of equal proximity. the daughter inherits as a 6 AIR 1996 SC 702. Uterine Brother and Uterine Sister: The uterine brother and uterine sister are not primary heirs. H and a sister FD. Illustration: There is one interesting case. Whenever the uterine brother and sister inherit they take equal share. father. They inherit only in certain circumstances. (d). H. UB and UBI took 1/3. CS1. P dies leaving behind a full sister. When there are more than one full sister. M took 1/6. and nothing was left for FS. M. mother. Only the Koranic residuaries can inherit in double capacity. Sheikh6. each taking 1/18. the rule of male taking double portion does not apply to them. For instance. The Supreme Court held that each daughter would take 1/3 and the remaining 1/3 will go to sister. one uterine sister US. and between them share it equally. true grandfather. son‘s son. two uterine brothers. UB and US together will take 1/3 each taking 1/6. FD. i.Critical Study between Hanafi & Shia Law as to Succession excluded when there is a son. In the case Newanesse v. CSl. how low so ever. had some residue been left. died leaving behind her husband. (b) A full brother or a full sister does not exclude a uterine brother or a uterine sister. Uterine brother and uterine sister take 1/6 share. Where there are more than one uterine brother or uterine sister they together take 1/3. 3. CS2. In this case full brother would have taken as a residuary.. CS3 will take 1/6. three consanguine sisters. H took 1/2. A consanguine sister having same shares is excluded in the presence of a son. son‘s son. either as sharers or as residuaries. father or a true grandfather.

a son's son's son. SD. then W will take 1/4 as sharer. and son's son's son. (a) of different degrees. and the residue of the estate. son's daughter. a Muslim. D will take 1/2 as sharer. she inherits as a residuary. then D and D1 together will take 2/3 as sharers. D and D1. as residuary. 4. son's daughter. the descendant distant kindreds are preferred over ascendant distant kindred and collateral distant kindreds. When there is a son. if a Muslim dies leaving behind a widow. then all the claimants take per capita. namely. SSD taking 1/9 and SSS taking 2/9. a son's daughter. (b) If all of them have equal degrees of descent. Distribution of Assets among the Distant Kindred The distant kindred succeed to the estate of the deceased only in the absence of the sharers and residuaries with one exception. then the distant kindred take the residue. SD 1/12 as residuary. Thus. the rules of distribution of assets and of exclusion may be stated thus: (1) When among the claimants there are descendants. and daughter's 14 . SSS. succeed with a male of lower grade. (c) If the claimants have the degrees of descent and the sexes of intermediate ancestors do not differ. viz. then the one who has fewer degrees of descent will be preferred. Among the distant kindred. male taking double portion. SO. no one of these females can. Except the son's daughter how low so ever. SSO 1/12 as Residuary. then the children of sharers and residuaries are preferred over the children of distant kindred. W.. SSS and SSD will take the remaining as residuaries. and son's son's daughter SSD.Critical Study between Hanafi & Shia Law as to Succession sharer when there is no son. when husband or wife is the sole heir. SSS taking 2/3 and SD taking 1/9 (in accordance with the rule that male takes double portion). SD will take 1/6 as sharer. Thus. and full sister's son FSS (who is distant kindred). and son's son's son. (ii) P. For example. SSS 1/6 as residuary. SSS. SSD. Further illustrations are: (i) P dies leaving behind daughter. son's son's daughter. ascendants and collaterals. DD. and the remaining will go to SD. (2) When all claimants are descendants. D and D1 together will take 2/3. then ascendant are preferred. SSS. SD. D. When the claimant distant kindreds are ascendants and collaterals. the 3/4 will go to FSS. when a Muslim dies leaving behind two daughters. dies leaving behind two daughters. if P dies leaving behind daughter's daughter. D and D1. as sharer. SSS as residuaries.

(3) Where there are two or more claimants claiming through the same intermediate ancestor. as many females as there are claimants claiming through her. This is done by reducing the fractional shares to be common denominator.Critical Study between Hanafi & Shia Law as to Succession son. Since this is done by increasing the denominator. two anomalous situations are likely to arise: The sum of shares allotted to various heirs according to their entitlement. the rule is to count each of such ancestors if male. this process is to be applied as often as there may be occasions to group of the sexes of intermediate ancestors. and a daughter's daughter's son. and the latter by the application of the doctrine of Radd or return. Doctrine of Aul or increase – When the sum total of the shares allotted to various heirs in accordance with their entitlement exceeds the unity. their shares will be pooled together which will come to 1/2. (e) if the intermediate ancestors differ in their sexes. When an intestate leaves descendants in the fourth or remoter generations. assigning double portion to male and one portion to female ancestor. a daughter's daughter's daughter. (i) may be in access of the unity. the doctrine has been given the name of increase (aul) though in fact the 15 . DS will get 1/2. Since the sex of the ancestors differ at the second line of descent. then the doctrine of aul lays down that the share of each heir should be proportionately reduced.if female. the shares were to be assigned at that stage in case of two claimants. Illustration: P dies leaving behind a daughter's son's daughter. This will mean that DDS will take 1/3 and DDD will take 1/6. DSD. irrespective of the sexes of the claimants. or (ii) may be less than the unity. But. Since in the line DS there is only one heir. . DDD. the shares are to be allotted here. (ii) Where there are three or more claimants and each is claiming through a different line of ancestors. as many males as there are claimants claiming through him and. DS. the male taking the double portion. then (i) where sexes differ. his 1/2 will go to DSD. DDS. DD and DDI'S 1/2 will go to DDS and DDD. male getting double portion and female getting one portion. DD will get 1/4 and DD1 will get 1/4. 5. Doctrines of Aul (increases) and Radd (return) In a system of law which assigns fixed shares to heirs. Since there are two females. then shares were to be allotted where sexes starts differing. DD will take 1/3 and DS will take 2/3. The former situation is solved by the application of the doctrine of Aul or increase.

the doctrine of return lays down: (i) the surplus is distributed among the sharers in proportion to their shares. M takes 1/6 and D takes 1/2. as corrective of many social and economic inequalities that prevailed then. FD and FDl. on the other hand. M's share will be increased to 1/4 and D's share to 3/4. the customary law of succession or as Fyzee puts it. held the view that two are to be read read together in one harmonious scheme. Doctrine of Radd or return: When there is surplus left after allotting the shares to the sharers in accordance with their entitlement. SHIA LAW OF SUCCESSION The shia law of Succession differs fundamentally from the sunni law. and Mother M. H. and (ii) wala. therefore.7 and. 16 . The Nasab is sub-divided into: (i) Dhu Fard (the Koranic Heirs or Sharers). FD & FD1 4/8 and M 1/8. The proportionate reduction of shares is achieved by increasing the denominator from 6 to 8. Under Muslim law of modern India. and (ii) dhu qarabat.l/6. and in modification of. and there are no residuaries to take the surplus. Illustration: P dies leaving behind her Husband. or special cause. FD & FD1 .Critical Study between Hanafi & Shia Law as to Succession shares are proportionately reduced. The Hanafis considered the super-imposition of the Koranic Heirs on the agnatic system of succession of the customary law as supplementary to. (ii) But the husband or the wife is not entitled to return. 381. so long as there is a sharer or distant kindred alive and if there is no sharer or a distant kindred. This is done by reducing the common denominator. Thus. Illustration: P dies leaving behind his mother M. then the surplus returns to the wife or husband. two full sisters. and (b) Sadab.There remains a surplus of 1/3. The Sadab is also sub-divided into two: (i) zawjiyyat or status of a spouse. the shares of the respective shares will be : H will take 3/8. or blood relationship. they will be allotted the shares as under: H ½ or 3/6.2/3 or 4/6 and M . considered the Koranic scheme of succession as anew scheme and in suppression of the customary law of succession. Since there is no residuary. The Shia Scheme of Heirs The shias base the right of succession to the propertyon two principles: (a) Nasab. 1/3 will return to D and M. then the doctrine of return lays down that the surplus is to be distributed among the sharers in proportion to their respective shares. and his daughter D. The Ithna Asharis. 7 Fyzee. or blood relations.

(ii) the residuaries and the descendants of the residuaries how low so ever. II. It should also be noted that the husband and wife always inherit. Paternal uncles and aunts of the deceased. Grandparents (both true and false) how high so ever. and wala of immanate. From the point of view of distribution of assets. They are called sharers. the Shia law divides the heirs into two categories: (i) the sharers and the descendants of the sharers. All sharers do not have priority over the residuaries. the heirs for the purpose of determining priority. Parents. Of these first two have become obsolete in India and the third has been replaced by the law of escheat. and inherit with all classes of heirs. (i). how low soever. how low so ever. Classification of heirs: In modern India. how low so ever. the heirs of a Shia muslim fall under the following classes: I. b. The Shia law does not recognises distant kindred as a separate class of heirs. Distribution of Assets It should be noted that under the Shia law all sharers are not Class I heirs.Critical Study between Hanafi & Shia Law as to Succession special legal relationship. Children and other lineal descendants. Under this category come only to persons husband and wife. (ii) Brothers and sisters and their descendants . Under wala comes right on emancipation. State by Escheat. All those blood relations who are not sharers are the residuaries. heirs by consanguinity. are placed into three classes: 17 . These are further sub-divided into the followinga. onligation for delicts committed by the deceased. (i). since the Koran allots them a specified share. Besides the husband/wife. (i). heirs by marriage. how low so ever. (ii). c. III. and of parents nd grandparents how high so ever and their descendants.

grandchildren tke the share which the son or daughter would have taken had he or she been alive. she takes 1/2. or (c) one such brother and two such sisters. or (d) four such sisters with the father. Paternal uncles and aunts of the deceased. he takes as a residuary. their descendants . and failing them. and his or her parents and grandparents how high so ever and their descendants. and of his or her parents and grandparents how high so ever and their descendants. If there is a son.Critical Study between Hanafi & Shia Law as to Succession I. or (b) two or more full or consanguine brothers. (i). Son . Here all the shares are defined by the Koran. how low so ever. provided there is no son. parents and children and their lineal descendants. Grandchildren – in the absence of children. among them the nearer excludes remoter. If there are no such relations she takes 1/3. then she takes as residuary along with him. and (ii) Children and other lineal descendants how low so ever: among them the nearer excludes the remoter. son and daughter excludes son‘s and daughter‘s children. how low so ever. Mother – mother takes 1/6 when there is: (a) lineal descendant. (i) Grandparents (both true and false) how high so ever. II. Distribution of Assets among Class I heirs: In this class are two groups of heirs. and (ii) Brothers and sisters (among them brothers and sisters of full blood are preferred over consanguine ones). if there is a lineal descendant. nearer excluding the remoter. 1. and (ii) Maternal Uncles and Aunts of the deceased. Husband – husband takes ½ of the property and it reduces to ¼ where there is a lineal descendant. Daughter – when there is no son. Thus. Parents. Father – father takes 1/6 share. If there is none. Wife – wife takes ¼ of the property but it reduces to 1/8 where there are lineal descendant.Son is always a residuary. This means: (i) children of each son 18 . III. when there are two or more they together take 2/3. (i). how low so ever.

Another example. the rules of distribution are: (a) One uterine brother or sister takes 1/6 share. they will take their respective shares. If there are two grandparents on one side and one at another side. The paternal grandparents divide the 2/3 between themselves on the basis of double portion to males. when there is only one. Illustration: P dies leaving behind. the full sister takes as sharer. (b) In the absence of full brother. when all the four grandparents are there. M will take /3 as sharer F will take remaining 1/6 as residuary. But F‘s 5/8 will go to FM and FF. the children among themselves will divide it on the basis of the rule of double portion to the male child and one portion to the female child. he or she will take the entire 2/3 or 1/3 of property. H. she takes ½ and when there are two 19 . if any. M will take 1/6 as share and D & D1 will take 2/3 as sharer. The claimants may be only grandparents. P dies leaving behind two daughters D and D1. If there is only one grandparent either at paternal side or maternal side. and mother. In such a situation. since she is the only heir.. i.Critical Study between Hanafi & Shia Law as to Succession will take the share which the son would have taken as residuary. how high so ever and no other relative is there. H will take ½ as sharer. F will take 1/6 as sharer (because of daughters). Among them. (ii) children of each daughter will take the same share which the daughter would have taken if living. the property devolves on class II heirs along with husband or wife. MM will take this 2/3. The claimants may be only brothers and sisters. while two or more take 1/3 share. M. The distribution of assets among the Class I heirs may be explained by a few examples: P dies leaving behind her husband. the paternal grandparents will take 2/3 and maternal grandparents will take 1/3. FM taking 2/9 and FF taking 4/9. The respective shares of M and F will be 1/3 and 2/3. 2. a paternal grandfather FF. there may not be any grandparents. the following three situations are likely to arise: 1.e. either as a share or as a residuary. father F and Mother M. but maternal grandparents divide it equally between themselves. In such a situation. father F. 2. and will divide it among themselves on the basis of the rule of double portion for a male and one portion for a female. paternal grandmother FM and a paternal grandmother MM. Distribution of Assets among Class II heirs: In the absence of class I heirs.

remoter grandparents would take their place. MS will take 1/6 as sharer. the distribution of property will take place as per these rules: (a) A maternal grandfather or grandmother counts for uterine brother or sister respectively. the nearer in degree excluding the remoter. The Class III heirs may be divided into the following categories in accordance with their priority: (i) Paternal and maternal uncles and aunts of the deceased. (vi) The descendants of (iii) how low so ever. taking ½ share when one. (b) A paternal grandfather or grandmother counts for full or consanguine brother or sister respectively. the nearer in degree excluding the remoter. she takes as residuary along with him. (v) Paternal and maternal uncles and aunts of the grandparents. Illustration: P fies leaving behind a uterine brother. if any. Illustration: P dies leaving behind a paternal grandfather.Critical Study between Hanafi & Shia Law as to Succession or more then take 2/3 each. When there is a full brother. taking ½ share when one. 3. if there is a consanguine sister takes as sharer. (iv) The descendants of (iii) how low so ever. (vii) Remoter uncles and aunts and their descendants in like order. after taking out the shares of husband or wife. the residue will go to FD and FS. the assets of the deceased. W will take ¼ as a sharer. In view of this. Where there are grandparents with brothers and sisters or their descendants. their descendants would take their place. MS. 3. FF. FD and a widow. 20 . FF will take 2/3 and FD and FD1 together will take 1/3. the consanguine sister takes as sharer. (c) if there are no grandparents. and 2/3 when two or more. the nearer in degree excluding the remoter. W. and two full sisters. a consanguine brother. (c) in the absence of the consanguine brother. (d) if there are no brother or sister. then she takes as residuary along with him. (ii) The descendants of (i) how low so ever. FS. FD and FD1. Distribution of Assets among Class III Heirs: In the absence of heirs of Class I and Class II. FD taking 7/36 and FS taking 7/16. if there is a consanguine brother. after taking out the share of Husband or Wife. and 2/3 when two or more. FF will be equal to a full brother. a consanguine sister. (iii) Paternal and maternal uncles and aunts of the parents. will devolve on Class III.

the property devolves on their descendants. Rules of Distribution of Assets among the Uncles and Aunts: The rules are: (i) if there is a husband or wife. FDD and a uterine maternal uncle‘s son and daughter. Doctrines of Aul (increase) and Radd (return): The same anomalous situations relating to distribution of assets among the heirs are likely to arise under the Shia law as they are likely to arise under Sunni law. (ii) where there co-exist paternal uncles and aunts as well as maternal uncles and aunts. 4. viz. the sum total of shares being less than the unity or more than the unity.e. (v) in the absence of one side.. then he or she is to be assigned the Koranic share. MSS and MSD. 5. when only claimants are full paternal uncle‘s son and a consanguine paternal uncle. the doctrine of representation applies. In this case the distribution of assets will first take place at the roots. i. the fraction in access is to be deducted from the shares of daughters and full or consanguine sisters. 6. though in the actual application of the doctrine there are some differences. In case the sum total of shares exceed the unity. the problem of rateable distribution or the distribution of balance among the heirs arises. like the Sunnis solve the problem of excess by the application of the Doctrine of Radd. The rule of preference among them is that nearer excludes the remoter.Critical Study between Hanafi & Shia Law as to Succession To the above order of succession one exception is recognized. In the distribution of assets among the descendants of aunts and uncles. The Shias do not recognize the Doctrine of Aul or Increase. (iv) the 1/3 portion falling to the share of maternal uncles and aunts will be divided among them. Distribution of Assets among the descendants of Uncles and Aunts: In the absence of uncles and aunts. FD‘s 5/6 will go to his daughter FDD. MS taking 1/6 as sharer and FD taking remaining 5/6 as residuary. between them they will share it equally. MS‘s 1/6 will go to MSS and MSD. then paternal side is to be assigned 2/3 share and maternal side is to be assigned 1/3 irrespective of the number of uncles and aunts.. the former excludes latter. The Shias. The reason given behind this 21 . as per their rule. (iii) the portion falling on the paternal side is to be divided among aunts and uncles if they are brothers and sisters of the deceased. the other would take the whole property. For example: P dies leaving behind a full paternal au nt‘s daughter.

The sunnis kept the old framework intact. they should suffer the loss. The Sharya-ul-Islam holds that consanguine sister is not entitled to return. howsoever remote. 8 There is a conflict of opinion among the Shia authorities in this regard. then the balance is distributed among the shares in proportion to their shares. 22 . They revised the law prevalent under the Arabian customs and usages. blended the old rules and the newly laid down rules. when the total shares are less than unity. (iii) in case a Shia dies leaving behind uterine brothers and sisters as well as full sisters. which provided the basic framework for laws of Succession. Doctrine of Return – if after the distribution of assets among the shares.8 DISTINCT RULES OF SUCCESSION UNDER SHIA AND SUNNI LAWS Laws relating to Shias and Sunnis with respect to Succession are different in many respects. the doctrine of return uner the Shia law is subject to the following exceptions: (i) if there are other heirs. and superimposed the quranic principles on this old setup. such as preference to agnates over cognates. Quran provided their modifications by adding to and amending then existing rules. then the mother is not entitled to a share in the return. then the uterine brothers and sisters are not entitled to the return. the husband or the wife is not entitled to the return. so when the shares exceeds. as well as (b) two or more full or consanguine brothers. while Kafi is of the opinion that she is. the entire residue goes to them. (ii) if an intestate Shia dies leaving behind : (a) mother. in the light of the newly laid down principles and came out with a scheme widely different from the one propounded by the Sunnis.Critical Study between Hanafi & Shia Law as to Succession is that by doctrine of return. some residue is left and there are no residuaries to take it. It must be remembered that the Quranic revelations did not abrogate the then existing customs and usages. This difference is primarily due to the interpretation of the Quranic provisions and their incorporation in the already existing system. or one such brother and two such sisters or four sisters. But. But this exception does not apply if the uterine brothers and sisters co-exist with consanguine brothrs and sisters. In such a case all of them share proportionately in the balance. The Shias on the other hand. father and one daughter.

 The Shias deduce certain principles which they consider to underlie the amendments mentioned in the Koran. and they add or alter those rules in the specific manner mentioned in the Koran and by the Prophet.e. but under Shia Lawit it is a bar only if it is intentional. Under Shia law. the shia law recognises it to some extent. Without exception. according to Sunni law. 4. there are only two classes of heirs namely sharers and residuaries. exclude residuaries and residuaries exclude the distant kindred. the first excluding the second from Succession and the second excluding the third. According to sunni law. and thus raise up a completely altered set of rules..distinction between : The greater part of Mohammedan Law of Succession is founded upon the Koran. and fuse these principles with the principles underlying the pre-existing customary law. residuaries and distant kindred. the sharers and the residuaries are all jointly divided into three classes. The leading differences in their interpretations may be stated as follows:  The sunnis to some extent allow the principles of the pre-Islamic custom to stand. 2. 9 Murtaza Hussain Khan v. The sunni law doesnot recognise any Right of Primogeniture.Critical Study between Hanafi & Shia Law as to Succession Sunni and Shia interpretation of Koran. Koran9 did not sweep away the existing laws of successions. Sunni law restricts recognition of the Doctrine of Representation to a few limited cases. The sharers. 5. 3. there are three classes of heirs namely sharers. Mohammad Ali Khan. i. in Shia Law it is the cardinal principle of succession. whereas under Shia law. These amendments have been differently interpreted by the Sunnis and the Shias. 23 . Points of difference between Sunni and Shia Law as to succession 1. ILR 33 All 532 (PC). homicide is a bar to succession in Sunni Law. heirs by consanguinity and heirs by marriage. but made a great number of amendments based on a few common principles.

either intentionally or unintentionally. Under the Shia Law only the husband is entitled to return and not the wife. Under the Sunni Law. only the husband is entitled to return. The Sunni Law does not interfere with the koranic sharers except those. But according to the Shias.e. 24 . 7. he is to inherit. i. Under the Sunni law. The classification of heirs under the Sunni law seems unnatural and artificial. where there is residue. Under the Sunni Law both husband and wife can take by return. But according to Shia Law. According to the Sunni law. But the classification under the Shia law is more natural.. According to the Sunni law. But the Shias kept the list of the koranic heirs intact and re-arranged is in a group divided on the basis of the propinquinty. there is distinction between movable and immovable property. The doctrine of representation is recognised by the Shias but not the Sunnis. but it appliesonly to the daughter and sister among the Shias. the residue goes to the father. the residue is divided amongst sharers by return. they introduce into the list of shares. if the deceased leaves behind a single daughter and father. in case a childless widow. such person will be disqualified only if he has intentionally caused the murder. so under the Shia Law there is distinction between intentional and unintentional homicide so far as the exclusion of a person from Succession is concerned. all the Sharers except the husband or wife share in the return and the husband or wife gets the residue on the total failure of other heirs. A childless widow is not permitted to take any share in her husband‘s immovable property. but among the Shias. But according to the Shia law. Under the Sunni law a person can be excluded from inheriting if he has caused murder of the person from whom. there is no distinction between movable and immovable property left by the deceased. the doctrine of increase extends to all sharers alike.Critical Study between Hanafi & Shia Law as to Succession 6. on the authority of the Ijmaa and the Kiyas.

however remote. Shia law rejects the criterion of the agnatic tie and regards both the maternal and paternal connections as equally strong grounds of inheritance. (2) grandparents. are divided into three classes: (1) parents and lineal descendants. various differences are there. No other female or non-agnatic relative has any right of inheritance in the presence of a male agnate. but all other relatives. CONCLUSION It can finally be concluded after taking in view the laws of succession in the two branches of Muslim Law are different in many aspects. but the bequest may be ratified by his legal heirs. and blood tie. if they are more than one degree removed from the deceased. brothers and sisters. including females and non-agnates. son‘s daughter. There is a fundamental divergence between the Sunni and the Shia schemes of succession. This agnatic system is mitigated by allowing the surviving spouse and a limited number of females and nonagnates—the daughter. trace their connection with him through male links. will be effective only with the consent of the legal heirs. (3) uncles and aunts 25 . and none of them excludes from inheritance any male agnate. degree. In the Shia system the surviving spouse always inherits a fixed portion. if they exceed these limits. consanguine.e. Further protection is afforded to the rights of the legal heirs by the doctrine of death sickness.Critical Study between Hanafi & Shia Law as to Succession Under Shia law the only restriction upon testamentary power is the one-third rule. however. bequests that infringe these rules are not necessarily void and ineffective.. Sunni law is essentially a system of inheritance by male agnate relatives or ʿaṣabah—i. the testator has acted beyond his powers. mother. and. grandmother. as in Sunni law. Although both Shia law and Sunni law provides same kinds of rules for succession of property by the heirs but when these rules are delat in detail. and uterine brother—to inherit a fixed fractional portion of the estate in suitable circumstances. germane. Any gifts made by a dying person in contemplation of his death are subject to precisely the same limitations as bequests. Under both systems. and their issue. and uterine sisters. But the females among these relatives only take half the share of the male relative of the same class. relatives who. but Sunni law goes further and does not allow any bequest in favour of a legal heir.

Mulla. Allahabad. Mulla on Mohammedan Law. law Publishers. 2011. a male relative normally takes double the share of the corresponding female relative. 26 . Hind Publishing House. 9th edition. lexis Nexis Butterworths Wadhwa. therefore.. Family Law Lectures II. Poonam Pradhan. 2004. Dwivedi Law Agency. Paras. Diwan. Ali.Critical Study between Hanafi & Shia Law as to Succession and their issue. While. I. Allahabad Law Agency. 2007. Ameer. Muslim Law in Modern India. Any relative of class one excludes any relative of class two. Within each class the nearer in degree excludes the more remote. BIBLIOGRAPHY Referred Books : Saxena. females and nonagnates are much more favourably treated than they are in Sunni law. commentaries on Mohammedan Law. who in turn excludes any relative of class three. 2007. 1st edition. Dr. 3rd Edition. and the full blood excludes the half blood. Revised Enlarged 5th edition.