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INTRODUCTION

Inheritance is the entry of living persons into possession of dead persons „property and exists in some form wherever the institution of private property is recognized as the basis of the social and economic system. The actual forms of inheritance and the laws governing it, however, differ according to the ideals of different societies.

The law of inheritance in Islam is based upon five main considerations. First is to break up the concentration of wealth in individuals and spread it out in society. Secondly, it is to respect the property right of ownership of an individual earned through honest means. It also considers hammering in the consciousness of man the fact that man is not the absolute master of wealth he produces but he is its trustee and is not, therefore, authorized to pass it on to others as he likes. It also aims to consolidate the family system which is the social unit of an Islamic society and to give incentive to work and encourage economic activity as sanctioned by Islam.

Prior to Islam, and within the Arabian Peninsula, the system of inheritance was confined to male descendants. Women not only did not have any share of inheritance, but they themselves were inheritable too. Siblings from the mother's side, like half-brothers or half-sisters, were completely excluded. Other Semitic cultures also practiced primogeniture, under which all property went to the eldest male child.

The Qur'an introduced a number of different rights and restrictions on matters of inheritance, including general improvements to the treatment of women and family life. The Qur'an also presented efforts to fix the laws of inheritance, and thus forming a complete legal system. This development was in contrast to pre-Islamic societies where rules of inheritance varied

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considerably. Furthermore, the Qur'an introduced additional heirs that were not entitled inheritance in pre-Islamic times, mentioning nine relatives specifically of which six were female and three were male. The laws of inheritance in the Qur'an also included other male relatives, like the husband and half-brothers from the mother‟s side, which were excluded from inheritance in old customs. In general, the Qur'an improved the status of women by identifying their share of inheritance in clear terms. It also completely forbade the practice of inheriting widows. Joseph Schacht states that "this is not meant as a regular legal ordinance, but is part of the Qur'anic endeavor to improve the position of women.” The Qur'an does not explicitly mention the shares of male relatives, such as the decedent's son, but provides the rule that the son's share must be twice that of the daughter's. Muslim theologians explain this aspect of inheritance by looking at Islamic law in its entirety, which bestows the responsibility and accountability on men to provide safety, protection and sustenance to women. In addition to the above changes, the Qur'an grants testamentary powers to Muslims in disposing their property, in their will, called “waṣeyya”; Muslims are allowed to give out a maximum of one third of their property. Muslims are also encouraged to give money to the orphans and poor if they are present during the division of property.

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they have also upheld the rule of men having twice the share of women in circumstances not readily mentioned in the Qur'an. in addition to a number of important reforms to the traditional system. and agnatic granddaughter. 3 . large volumes of work have been written on the subject. The main achievements of such modern systems were the codification of inheritance laws. the laws of inheritance for Twelver Shia. This led to some minor differences between jurisprudence schools of the Sunni maddhabs. maternal grandmother. despite being based on the same principles. the system of inheritance of the Kharajite Ibadis and Zaidis closely resemble that of the Sunni system. Muslim jurists added three additional heirs: the paternal grandfather. usually a mixture of different schools of jurisprudence (including Shia) is in effect. like Qiyas. In some cases. Muslim jurists used these verses as a starting point to expound the laws of inheritance even further using Hadith. It has also been reported in Hadith that Muhammad allotted great importance to the laws of inheritance and ordered his followers to learn and teach them. On the other hand. These heirs. in addition to few verses dealing with testamentary power. This amalgamation of old agnatic customs and Islamic Law led to a number of problems and controversies that Muslim jurists have solved with great ingenuity. Through the use of deductive reasoning. if entitled to inherit. are given their fixed shares and the remaining estate is inherited by the Residuaries. and tried to deal with complex cases in a variety of different contexts. In later periods. differ in a number of features due to the rejection of certain accounts of Hadith and based on their understanding of certain events in early Islam. In modern Muslim countries. Also. as well as methods of juristic reasoning.RECENT DEVELOPMENTS The Qur'an contains only three verses which give specific details of inheritance and shares.

All the modern writers have admired the Muslim system of inheritance for its utility and formal excellence. Husband and wife have been made heirs. It laid the rules for the break-up of the concentrated wealth in the society and helped in its proper and equitable distribution amongst a large number of persons. In pre-Islamic Arabia and other countries where there had been tribal societies not only women were deprived of the right of inheritance but even weak and sick persons and minor children were given no share in it. as the common principle of inheritance was that he alone is entitled to inherit who wields the sword. their right to property by inheritance was out of question. Women had been completely denied the share of inheritance. In the pre-Islamic world the law of inheritance had so many evils in it. It gave a death-blow to the law of primogeniture and thus provided the democratic basis for the division of the property of the deceased. They were rather regarded as part of the property of the deceased and. 4 . It defined and determined in clear-cut terms for the share of each inheritor and imposed limits on the right of the property-owner to dispose of his property according to his whim and caprice. therefore. the co-sharer with the male and thus not only restored her dignity. It made the female. Parents and ascendants are given rights even when there is a male descendent. who had been previously thought a chattel. Then in certain societies there had existed the law of primogeniture and it exists even today in some of the so-called civilized parts of the world which entitles only the eldest son to inherit the whole of the father's property or to get the lion's share. Islam introduced so many reforms in the laws of inheritance for the betterment of Muslim lives equally. but safeguarded her social and economic rights. Muslim law of inheritance is based on the rules laid down in Qur‟an or through the customs and usage prevalent among the Arabs.

4. Paying funeral and burial expenses. Illegitimate person does not inherit from father or son. and distribute the remainder of estate and property to the relatives of the deceased according to Shariah Law. execute the testamentary will of the deceased (which can only be a maximum of one third of the property). The major rules of inheritance are detailed in Qur‟an and Hadith. child of a divorcee inherits from his mother and not from father. 2. When a Muslim dies there are four duties which need to be performed. There is no distinction between Ancestral property and Self-acquired property. such share shall be passed on to his/her heir. remaining property is considered for distribution. Such child also will be treated on the same footing of illegitimate person. Such property includes movable as well as immovable properties. there is a legal share for relatives of the descendents in his estate and property. Similarly. viz. Following are the major rules of the Muslim law of Inheritance:1. Hence.GENERAL RULES TO INHERITANCE WITH EXCLUSIONS Inheritance is considered as an integral part of Muslim Law and its application in Islamic society is a mandatory. The allotted share of the property will be allotted immediately after the death of the ancestor. paying off the debts. Muslims inherit from one another as stated in the Qur‟an. then the share of such deceased heir will not 5 . After such expenses. However. In case of death of heir on whom the share of property is already vested. 3. if the ancestor (also called as propositus) is alive and any of his presumptive heirs die. There is no right of inheritance gained by mere birth. Such right will be a mere chance of survivorship and the property share.

or else. 6 . In Islamic law. only relatives with a legitimate blood relationship to the deceased are entitled to inherit. viz. Partial (also known as imperfect) exclusions and Total (also known as perfect) exclusions. the unborn child's share will be reserved.  One who professes a religion other than Islam. they would be considered dead. Four persons cannot get inheritance: A fugitive slave who has fled away from his master. There are two major exclusions. Also a woman during the time of waiting (iddat) after divorce is considered as a wife of the deceased for purposes of inheritance. There are exclusions to the rule of inheritance.  One who has murdered one‟s predecessor intentionally or unintentionally. and vice versa. The only "practical situations" which may cause disqualification are differences of religion and homicide. unless there is something to exclude him. It would be still the property of the ancestor / propositus. There are even further rules of exclusion and inclusion of different relatives. 5. All the jurists agree that intentional or unjustifiable killing would exclude a person form inheritance. In general. Every person is entitled to inherit under Muslim Law. A child in a womb is deemed to be born on the date of conception and if born alive. such child will get share or otherwise such share will be distributed among others. illegitimate children and adopted children have no shares in inheritance. who is alive. 6. It is called as rule of total and partial exclusion. but not uterine brother. Missing heirs will be given their respective shares if they reappear at the time of such distribution.  One living in Dar-ul-Harb cannot inherit the property of one living in Dar-ul-Islam. Thus. In case where a deceased man leaves a pregnant woman. a full brother will exclude a consanguine brother. But schools of Islamic jurisprudence differed whether a Muslim can inherit from a nonMuslim or not.be passed on to his / her heirs.

the heirs have been divided into three classes. also get a share of being 'Asaba. and eight females (wife. son's daughter. Sole legatee and the state. including four males (father. Subsidiary heirs are Successor by contract. There are 5 primary heirs viz. 1. uterine brothers and husband). uterine sister). single daughter. Father's share is one-sixth when the deceased leaves a son or a son's son. But this is not the case with the grandfather. Acknowledged Kinsman. 3 Principle and 4 Subsidiary Classes. mother.TYPES OF HEIRS AND THEIR RESPECTIVE SHARES The first step in the distribution of the estate of a deceased Mohammedan after payment of his mentioned expenses is to allot the respective shares to such of the relations as belong to the classes of heirs. father and mother. Hanifa Jurists have divided heirs into 7classes. grandfather. full sister. Imam Abu Hanifa is of the opinion that the presence of grandfather deprives the brother of his share in the inheritance. 7 . there are Qur‟anic heirs (also called Sharers). According to Islam. These sharers are twelve in number. in addition to this share (one-sixth). son. but if the deceased is not survived by a son or grandson his father will. These are those persons who have a right to definite shares in assets left by the deceased. The grandfather's share is like that of father's share but in three conditions:-According to Imam Bukhiri and Imam Muslim. In principle classes. grandmother. Husband or wife. the presence of father deprives even the brothers of their share in the inheritance. Dhaw-u'l-Fara'id:This category is also known as “Sharers”. consanguine sister. daughter. Agnatic heirs and uterine heirs.

They are entitled to one-sixth if their number is one. 8 . and one-third if they are more than one. The presence of grandfather does not reduce the share of the mother of the deceased.If the father of the deceased is alive. The granddaughters stand on the same level as daughters. The third set of sharers is uterine brothers and sisters. otherwise it is one-eighth. then the share of the mother is of what is left from the share of the wife of the deceased. The granddaughter is not entitled to any share if the deceased is survived by a son. The wife is entitled to one-fourth if the husband dies childless. the daughters are then treated as Asaba and the male child would get double of what falls to the lot of daughters. but if he is survived by grandsons and granddaughters. If the deceased is survived by a male child also. and two-thirds if more than one. Mother is entitled to one-sixth when she has a child or grandchild. they are entitled to one-sixth. and in case of being childless she gets one-third of the share. But in case the deceased is survived by one real daughter and one or more than one granddaughter they would get one-sixth. and two thirds if more. If the deceased is survived either by paternal grandmother or maternal grand. Full sister gets one-half if she is alone and two-thirds if they are more than one. The grandmother of the deceased has no share in the presence of the father of the deceased but she has a share in the presence of the grandfather. they would be treated as 'Asaba and the male grandchild would get double of what goes to the female grandchild. Consanguine sister is entitled to one-half if one. and if father is alive the paternal grandmother is deprived of this share.mother or even by both. The husband's share is one-half of the property of the deceased wife if she has no children. Real daughter: one-half when alone. The grandmother (maternal) is deprived of her share if the mother of the deceased is alive. but in case of children it is one-fourth.

however. then the brother. or grandson or father or grandfather. Then it comes the turn of full paternal uncle. If the deceased is not survived by any Dhaw-u'l-Fara'id. The daughters are entitled to half of the share as given to the son. and in the absence of brother his son. and. i. grandson of great-grandson. the residue of the assets falls to the share of those relatives who are called Asaba which. the inheritance will be distributed equally amongst them. If unfortunately the deceased is survived by none of the abovementioned relatives amongst the 'Asabat. There is no fixed share of the 'Asabat. Son is the first asabat to get the residue in order of succession. implies those relatives in whose line of relationship no female enters.e. If there is more than one son. and in the absence of son. then the father will fall under the category of 'Asaba. the residue will be taken by the Asabat. grandfather and the great-grandfather are included in the category of Dhaw-u'l-Fara'id. Asabat:This category is also known as “Residuaries”. When the heirs of the first group have received the respective shares. 9 . the deceased is not survived by category of a son. The grandsons are not entitled to any share in the presence of the son. then consanguine brother will be entitled to share in the inheritance and he will be preferred to full brother's son. If. The father. the grandfather assumes that position. If the deceased is not survived by son. and If Dhaw-u'I. according to the Shari'ah. the whole of the property falls to their share. This is the second group of inheritors.Fara'id are there to get their due share. none amongst the 'Asabat.2. his grandson will be entitled to share in the inheritance as 'Asaba and the female would also join them in share claiming half of the share as compared with male. If the son is not living. in the absence of the father. then the grandson is entitled to gain share in the inheritance.

etc. relations connected through blood who are neither sharers nor Residuaries. maternal grandfather of the father. the children of the sisters. the sisters of the father and those of the mother. maternal grandfather of the mother.  The son of the daughter of the son.  Maternal grandfather. like relations connected through females. The following relatives come under this category. but it is in extremely rare cases that they get any share in the inheritance.  The son of the daughter and daughter of the daughter.3. Dhaw-u’l-Arham:The last category of inheritors is known as “Distant-Kindred”. the grandmother of the mother. and daughter of the daughter of the son and their children. the grandfather of the mother. SHARES OF HEIRS Share Heir One 1/4 Husband 1/2 NA When there is no child or son‟s child When there is a child or son‟s child When no child or son‟s child NA Two or more NA When there is a child or son‟s child NA Conditions Exclusion 1/8 Wife 1/4 1/8 NA NA NA 10 . i.e.

son‟s daughters and there is no son nor son‟s son When there is no child or son‟s child When there is a child or son‟s child and no father or nearer true grandfather When there are Daughters or only son‟s daughters When there is a Wife or husband and father When there is a child or son‟s child or two or more brothers or sisters or NA Father 1/6 plus residue Father is a sharer and residuary Residue Absence of any child 1/6 NA Excluded by father or nearer true grandfather True Grandfather 1/6 plus residue NA Residue Converted by father Mother 1/6 NA NA 11 .1/6 NA When there is son or son‟s son When there are one or more daughters.

nor son‟s child and not more than one brother and sister When there is a wife or husband and father When no mother or no nearer Paternal grandmother When no mother or no nearer Maternal or Paternal grandmother or father.brother or sister and father When there is no child. Paternal True Grandmother Paternal Grand Mother (How High So ever) 1/6 NA Mother. or nearer true grandfather When there is no son 1/3 NA NA 1/3 plus residue Converted by father Maternal Grand Mother (How high so ever) 1/6 NA Mother. Maternal or Paternal grandmother or father or true grandfather ½ Daughter Residue 2/3 NA Converted by son or two or more sons Son‟s 1/2 2/3 When there is no son or Excluded by son or son‟s 12 .

or two or more daughters or two or more son‟s daughters of higher grade.Daughter son‟s son or one or more daughters or higher son‟s daughter son of higher grade. or two or more daughters or two or more son‟s daughters of higher grade. or one daughter with two or more son‟s daughters or higher grade Converted by son‟s son of equal or even lower grade 1/6 NA When there is no son or son‟s son or one or more daughters or higher son‟s daughter Residue Full Sister 1/2 2/3 When no child or son‟s child or father or brother Excluded by Son or son‟s so. or one daughter with two or more son‟s daughters or higher grade Excluded by son or son‟s son of higher grade. father or true 13 .

full sisters When no child or Son‟s child ( How Low So ever). or True Grandfather. daughter or son‟s daughter Converted due to full brother or daughters or son‟s daughters. or father or brother or full sister Excluded by Son. or full brother or full sister Excluded by one or more daughters or son‟s daughters or by two or more full sisters Converted in to Residuary by consanguine brother Excluded by Son or Son‟s Son. father or true grandfather or daughter or Residue ½ 2/3 Consanguine Sister 1/6 NA When one full sister only Residue Uterine Brother ½ 1/3 14 .grandfather. Father.

son‟s daughter Excluded by Son or Son‟s when no child Son. father or or (How Low true So ever) grandfather or son‟s child daughter or son‟s daughter Uterine Sister 1/6 NA 15 .

it may be followed that the total of the share exceeds unity. the total of the fractions may be less than unity. In such cases. In some circumstances. the residue is returned to the sharer in proportion to their share. This doctrine refers to the process of reducing the share proportionately. Then the fraction allotted to each heir will have to be reduced ratably. 16 . There may not be any heir belonging to the residuary to take the residue.DOCTRINE OF AUL It means the doctrine of decrease. DOCTRINE OF RADD It means the doctrine of return. In certain circumstances of allotment of share. This doctrine is recognized by Hanifa law and not by Shia Law. This is called Doctrine of Radd.

. Additionally. Additionally. Islamic scholars hold that the original reason for these differences is the responsibilities allotted to spouses.e. i. the man paid a gift to his wife or her family upon marriage. father gets 1/6 and mother gets 2/6. though not all. as do the shares of their descendants. and it also denotes the relationships which are not through [the deceased‟s] parents or children. Islam allots women half the share of inheritance available to men who have the same degree of relation to the decedent. Also the Qur'an does not discriminate between men and women in cases of kalalah relation. rather than the opposite. This custom received Islamic sanction. Arab society traditionally practiced the custom of bride price or dower rather than dowry. However. 17 . A husband in Islam must use his inheritance to support his family while a wife has no support obligations. In general circumstances. and there are other circumstances where women might receive equal shares to men. a son's share is double that of a daughter's. for example if there are only parents and husband. this principle is not universally applicable. while a brother of a childless woman inherits all of her property. Sometimes woman gets double share then share of man.where the decedent has both male and female children. it also means all the relatives of a deceased except his parents and children. women are entitled the right of Inheritance. husband will receive half. Kalalah describes a person who leaves behind neither parents nor children. For example: . the sister of a childless man inherits half of his property upon his death.WOMEN AND INHERITANCE In Islam. For example:-the share of the mother and father of a childless decedent. Also the share of a uterine brother is equal to the share of a uterine sister. placing a financial burden on men where none existed on women.

Both are on equal footing. Interpret Qur‟an as altering the old principles themselves and giving rise to new set of principles. 9. Disregard the details of Sunni system which rests on the decisions of the three CaliphsAbu Bakr. 7. 2. keeping rules intact. 18 . Interpret Qur‟an strictly. Treat all equally. Method of interpreting Qur‟an is characteristic. Follow strict classification of heirs given in Qur‟an. 1. Distant Kindred are postponed in favour of sharers and Residuaries. Distant Kindred inherit along with sharers and Residuaries. Doctrine of Aul is applicable to all sharers alike. No. SUNNI LAW Priority of agnates over cognates. The classification becomes important only in cases of quantum of shares. Give importance and preference to full blood over half blood. Method of interpreting Qur‟an is literal. Umar and Usman. 5. Give importance to the decisions of the three Caliphs-Abu Bakr.DISTINCTION BETWEEN SUNNI AND SHIA LAW OF INHERITANCE Sr. Preference to male over female. Doctrine of Aul operates against daughter and sister only. 6. 3. 4. SHIA LAW Deny any priority to agnates over cognates. 8. Umar and Usman.

Doctrine of Radd is not applicable to wife under any circumstances. 19 . without distinction. No distinction between real and personal property. Do not recognize right of elder son getting preference over younger ones. Principle ”nearer in degree excludes remote” applicable to all. Observe such distinction in case of Childless widow who is not allowed to take husband‟s immovable property. 13. in absence of sharers. Recognize right of eldest son up to deceased father‟s sword. Doctrine of Radd does not apply to wife and husband in presence of any other heirs.10. Principle “nearer in degree excludes more remote” applicable to only agnatic heirs. 11. However. 12. Except India. wearing apparel and Qur‟an. both get by return.

To understand the Islamic laws of inheritance as a whole it is necessary to consider the system of inheritance that operated within the Arabian Peninsula. and mores of the community to which the statute in question applies. "comprises beyond question the most refined and elaborate system of rules for the devolution of property that is known to the civilized world. who stated that the Muslim law of inheritance. Although we do not have the exact details of the system that operated prior to the Quranic revelations we do know that the system of inheritance was confined to the male agnate relatives ("asaba") of the deceased. In addition. prior to the revelation of the Quranic injunctions on inheritance. the Sunnas. and the Qiyas. which determined which of the surviving male agnates were entitled to inherit. the author of many works on the subject of the Muslim law of inheritance and a barrister-at-law. Amongst the male agnates there were rules of priority. Due to this. we have so many different succession laws. The Muslim law of inheritance is a superstructure constructed on the foundation of pre-Islamic customary law of succession. each purporting to reflect the diverse and differing aspirations. The divine justness and equitability of the Islamic laws of inheritance have been correctly appreciated by many non-Muslim scholars such as Professor Almaric Rumsey (1825-1899) of King's College. It is likely that the rules of priority that operate amongst the asaba in Sharia are a carryover of the old customary agnatic system. the Ijmas. The primary source of the Muslim law of succession flows from the Holy Koran. from all of which rules pertaining to succession can be gleaned. London. In Islamic law the son takes 20 . customs.CONCLUSION The law of succession in India falls within the realm of personal law. In this old customary system only the male agnates (asaba) were entitled to inherit.

21 .priority over the father who in turn takes priority over the brothers who in turn take priority over the paternal uncles. although it does enact that the share of the male is twice that of a female. As we shall see the Quran does not expressly state the share of the male agnate relatives as such. The Sunni Islamic law of inheritance is therefore. an amalgamation of the Quranic law superimposed upon the old customary law to form a complete and cohesive system. The Sunni jurists take the view that the intention of the Quranic injunctions was not to completely replace the old customary agnatic system entirely but merely to modify it with the objective of improving the position of female relatives.

V.kantakji. FAMILY LAW By G.html Visited on 26th December.iium. 2013.pdf Visited on 23rd December. PRINCIPLES OF MOHAMMEDAN LAW By Mulla. 2. http://www. 2013.com/fiqh/files/mawareeth/4015. 3. 22 .za/Inheritance%20according%20to% 20Islamic%20Sharia%20Law. 2013. http://www.muslimpersonallaw. WEBLIOGRAPHY 1. following books are referred for better understanding 1. 2.pdf Visited on 26th December. 2013. MOHAMMEDAN LAW By Tahir Mahmood.lawyersclubindia. 3.edu.co.my/deed/hadith/muslim/011_smt.UryTq9IW2Xo Visited on 26th December. http://www.C. 4. http://www.asp#. Subba Rao.com/articles/-8220-SUCCESSIONUNDER-HANAFI-LAW-8221--424.BIBLIOGRAPHY Though primary source would be Qur‟an.