Family Law

INHERITANCE

Name : Khuba Abbasi

Course : B.A.LLB (H) Self finance
Semester : 4th
Roll Number : 22

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 INDEX

1. Acknowledgement………………………... 3

2. Introduction …………………………… 4

3. Inheritance …………………………….. 6

4. General Rules of Inheritance ………… 7

5. Inheritance by Shia Law ……………… 12

6. Sunni Law of Inheritance …………….. 14

7. Rule of Radd/Return ………………….. 18

8. Principle of Aul/Increase ……………… 19

9. Sunni Law Cases ………………………. 20

10. Shia Law Cases ………………………... 21

11. Conclusion ……………………………... 22

12. Bibliography………………………………… 23

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 Acknowledgement

I would like to express my special thanks of gratitude to my teacher Prof. (Dr.) Kahkashan Y. Danyal

who gave me the golden opportunity to do this wonderful project on the topic “INHERITANCE”, which

also helped me in doing a lot of research and I came to know about so many new things. I am really

thankful to her.

Secondly, I would also like to thank my parents and friends who helped me a lot in finalizing this

assignment within the limited time frame.

- Khuba Abbasi

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 Introduction

When a Muslim dies there are four duties which need to be performed. These are:

1. payment of funeral expenses

2. payment of his/ her debts
3. execution his/ her will
4. distribution of remaining estate amongst the heirs according to Sharia.

Muslims must follow all the commandments of Allah (SWT) as Allah the Almighty says, "It
is not for a believer, man or woman, when Allah and His Messenger have decreed a matter
that they should have any opinion in their decision. And whoever disobeys Allah and His
Messenger, has indeed strayed into a plain error." [Quran 33:36]

The particular importance of the Islamic laws of inheritance is obvious from the verses
immediately following those verses giving specific details on inheritance shares, "These are
limits (set by) Allah (or ordainments as regards laws of inheritance), and whosoever obeys
Allah and His Messenger will be admitted to Gardens under which rivers flow (in Paradise),
to abide therein, and that will be the great success and whosoever disobeys Allah and His
Messenger, and transgresses His limits, He will cast him into the Fire, to abide therein; and
he shall have a disgraceful torment." [Quran 4:13-14]

The laws of inheritance are put on a noticeable position in Islam because of the restriction
placed by Sharia on the testamentary power of the testator.
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 prior to the revelation of the
Quranic injunctions on 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 this old customary system
only the male agnates (asaba) were entitled to inherit. Amongst the male agnates there were
rules of priority, which determined which of the surviving male agnates were entitled to
inherit. It is likely that the rules of priority that operate amongst the asaba in Sharia are a
carry-over of the old customary agnatic system. In Islamic law the son takes priority over the
father who in turn takes priority over the brothers who in turn take priority over the paternal
uncles. As we shall see the Quran does not expressly state the share of the male agnate
relatives as such, although it does enact that the share of the male is twice that of a female.
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. 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. While on the other hand, the Shia

4
 jurists took the view that since the old agnatic customary system had not been endorsed by
the Quran it must be rejected and completely replaced by the new Quranic law. By
specifying clear cut entitlement and specific shares of female relatives, Islam not only
elevated the position of women but simultaneously safeguarded their social and economic
interests as long ago as 1400 years. This first principle which the Quran lays down refers to
males and females of equal degree and class. This means that a son inherits a share
equivalent to that of two daughters, a full brother inherits twice as much as a full sister, a
son’s son inherits twice as much as a son’s daughter and so on. The Quran did not sweep
away the existing customs of succession, but made a great number of amendments.1

1
Tyabji, at pp.821-825

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 Inheritance

Inheritance is basically the transfer of status to the living person from the deceased with
respect to the specific estate/property objects. Inheritance particularly in the Islamic world is
one of the commonest ways of acquiring land or access to land. There is no specific
definition of the word inheritance in the Holy Quran but has been defined by the Muslim
jurists in different ways. Sir

Abdur Rahim’s definition of inheritance is that it is the transfer to the heir of the deceased's
rights and obligations.

The Muslim law of Inheritance is based on :

i.the rules laid down in the Quran or in the traditions and

ii.the customs and usages prevailing amongst the Arabs insofar as they have not been altered
by the Quranic injunctions or traditions.2

Pre-Islamic rules of succession –

i.The nearest male agnates succeeded to the entire estate of the deceased.
ii.Females and cognates were excluded
iii.Descendants were preferred to ascendants to collaterals
iv.Where agnates were equally distant to the deceased, they altogether shared the estate per
capita.3

Improvements Introduced by Islam –

i.The husband and wife were made heirs

ii.Females and cognates were made competent to inherit
iii.Parents and ascendants were given the right to inherit even when there were male
descendants
iv.As a general rule, a female was given one half the share of a male this is because of her
lesser responsibilities and obligations in comparison to males.4

2
Tyabji, at p.820.
3
Tyabji, at p. 829.
4
Fyzee at p.390

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 General Rules of Inheritance

Nature of Heritable Property

Heritable property is that property which is available to the legal heirs for inheritance. After
the death of a Muslim, his properties are utilised for the payment of funeral expenses, debts
and the legacies i.e. wills, if any. After these payments, the remaining property is called
heritable property. Under Muslim law, every kind of property may be a heritable property.
For purposes of inheritance, Muslim law does not make any distinction between corpus and
usufruct or, between movable and immovable, or, corporeal and incorporeal property. Any
property, which was in the ownership of the deceased at the moment of his death, may be the
subject-matter of inheritance.

Only one distinction is there which is recognised under the Shia law, a childless widow is
entitled to get her share (1/4) in the inheritance only from the movable property left by her
deceased husband.

Joint or Ancestral Property

The concept of a joint family or of coparcenaries property, as is recognised under Hindu law
is not known to Muslims. Whenever, a Muslim dies, his properties devolve on his heirs in
definite share of which each heir becomes an absolute owner. Subsequently, upon the death
of such heir, his properties are again inherited by his legal heirs, and this process continues.
Under Muslim law of inheritance, no distinction has been made between self-acquired and
ancestral property. All properties, whether acquired by a Muslim himself or inherited by his
ancestors, are regarded as an individual property and, may be inherited by his legal heirs.

In the case of Mohd. Abdul Rahim v. Mohd. Abdul Hakim5, it was found that two brothers
had used for themselves the goodwill of their father’s firm after his death and also the shares
of other members under their control entirely to their advantage, it was held that they stood
in fiduciary relationship to other members and the sections 23 & 28 of the Trusts Act applied
to the two.

In Rukaiya Begum v. O.V. Fazalur Rahman,6 the Patna High Court held that although that
there is no presumption of jointness and joint family business in Muslims but in certain
circumstances the court may uphold such eventuality. There is nothing contrary to law in
Muslim adult members of a family carrying on family business for the benefit of all
members of the family including minors and females, and the court may uphold it and such

5
AIR 1931 Mad 553.
6
AIR 1998 Pat 1.

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 legal consequences as follow from it, although the court will not impart all the legal
consequences as in case of Hindu joint family or a lawful partnership.

Birth Right not Recognised

Right of Inheritance arises only after the death of a Muslim ancestor. No person may be an
heir of a living person. Therefore, unless a person dies, his heirs have no interest in his
properties. Unlike Hindu law, the Muslim law of inheritance does not recognise the concept
of ‘right by birth’. Under Muslim law, an heir does not possess any right at all before the
death of an ancestor. It is only the death of a Muslim ancestor which gives the right of
inheritance to his legal heirs. As a matter of fact, unless a person dies, his relatives are not
his legal heirs; they are simply his heir-apparent and have merely a chance of succession,
(spes successions). If such an heir-apparent survives a Muslim ascendant, he becomes his
legal heir and the right of inheritance accrues to him. If the heir-apparent does not survive a
Muslim ancestor, he cannot be regarded an heir and has no right to inherit the property.

In the case of Ashabi v. Faziyabi7 ,the question before the Court was that if a Muslim lady
has a son and he dies after which the Muslim lady dies. Can the wife of the Son claim any
share in property of the lady as representative of the predeceased son? The Court held that a
daughter in law who is a widow is excluded from claiming any share in properties of her
mother in law. A person who died before the deceased cannot be his heir.

In the case of Mohd. Aliuddin Farooqui v. Mohd. Karamath Hussain8 the daughter of a
consanguine brother predeceased her father, her children cannot claim her father’s shares
since she having predeceased her father cannot have share in her father’s property.

Female’s Right of Inheritance

Males and females have equal rights of inheritance. Upon the death of a Muslim, if his heirs
include also the females then, male and female heirs inherit the properties simultaneously.
Males have no preferential right of inheritance over the females, but normally the share of a
male is double the share of a female. In other words, although there is no difference between
male and female heir in so far as their respective rights of inheritance is concerned but
generally the quantum of property inherited by a female heir is half of the property given to a
male of equal status (degree). The principle that normally the share of a male is double the
share of a female has some justification. Under Muslim law, while a female heir gets (or
hopes to get in future) an additional money or property as her Mehr and maintenance from
her husband, her male counterpart gets none of the two benefits. Moreover, the male heir is
primarily liable for the maintenance of his children whereas, the female heir may have this

7
2004 AIR Kant HCR 2886.
8
2003 AIHC 3538 (AP).

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 liability only in an extraordinary case.

A Child in Womb

A child in the womb of its mother is competent to inherit provided it is born alive. A child in
embryo is regarded as a living person and, as such, the property vests immediately in that
child. But, if such a child in the womb is not born alive, the share already vested in it is
divested and, it is presumed as if there was no such heir (in the womb) at all. Under Shia
Law the share of two sons should be reserved as a measure of precaution.9

No Rule of Primogeniture

Primogeniture is a principle of inheritance under which the eldest son of the deceased enjoys
certain special privileges. Muslim law does not recognise the rule of primogeniture and all
sons are treated equally. However, under the Shia law, the eldest son has an exclusive right
to inherit his father’s garments, sword, ring and the copy of Quran, provided that such eldest
son is of sound mind and the father has left certain other properties besides these articles.

Simultaneous Death of two-heirs

When two or more heirs die simultaneously and, it is not possible to establish as to who died
first then under Muslim law, all the heirs are presumed to have died just at one moment. 10
The result is that such heirs are regarded as if they did not exist at all; the inheritance opens
omitting these heirs. For example, A and В are each other’s legal heirs in such a manner that
after the death of any one of them, the surviving person would inherit the property of the
deceased one. But, both A and В die simultaneously say, in an aero plane crash, and it could
not be established as to who survived whom. Under Muslim law, neither A would inherit В
nor В would inherit A. Thus, the legal heirs of A would inherit A’s property as if there was
no В at all. Similarly, the heirs of В would inherit B’s property as if A did not exist at all.

Missing Persons

The right to the property of a missing person would arise only on the date on which he would
be presumed to have died, and heirs would be determined on that date and not on the date
which he disappeared.11 According to the texts of Hanafi law, a missing person was
supposed to have been dead only after ninety years from the date of his birth; till then the
inheritance of his properties did not open. But, now this rule has been superseded by Sec.
108 of the Indian Evidence Act, 1872 which provides as under:

“When the question is whether a man is alive or dead, and it is proved that he has not been
heard of for seven years by those who would naturally have heard of him if he had been

9
Verma, at pp.408-10.
10
Ibid.
11
Verma, at p.391.

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alive, the burden of proving that he is alive is shifted to the person who affirms it”.

Where a Muslim is missing for at least seven years and if it could not be proved that he (or
she) was alive then, that person is legally presumed to be dead and the inheritance of his (or
her) properties opens. It has been held by the courts that Hanafi rule of ninety years of life of
a missing person was only a rule of evidence and not any rule of succession; therefore, this
Hanafi rule must be taken as superseded by the provisions of Indian Evidence Act 1872.

Missing heirs

If at a time of the ancestor any of his heirs are missing, his share will be reserved until he
reappears or is proved to be dead. The others will be given their shares. If he reappears, he
will be given his share. But if he does not return, and is declared dead, the share reserved
will devolve on the heirs of the deceased ancestor and not onto the missing person’s heirs.
The presumption of death will be governed by sections 107-108 of the Indian Evidence Act.

Escheat

Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited
by Government through the process of escheat. State is regarded as the ultimate heir of every
deceased.

Illegitimate person

An illegitimate child is considered to be a child of his mother only. He has no father as such
neither he inherits from his father nor the father inherits from him. The reciprocal right of
inheritance exists between him and his maternal relations and his mother. Thus, if an
illegitimate person leaves a mother, a daughter and father, the daughter would get 1/2 share
and the mother 1/6th, the remainder would revert to them by return. The father would be
excluded. Similarly, an illegitimate brother, an illegitimate uncle are not entitled to
inheritance. Under Shia Law, the illegitimate child does not inherit even through the mother.

A child of a woman divorced by lian.

The son or daughter of a woman who imprecated and therefore divorced by her husband by
the method of lian is treated for the purpose of inheritance of the same footing as the
illegitimate son or daughter. The only difference is that if such child has a twin brother, they
inherit as full brother, because the source is common and is known. Under Shia Law, te child
of an imprecated mother does inherit from the mother and vice-versa.

Doctrine of Representation

Doctrine of representation is a well-known principle recognised by the Roman, English and

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Hindu laws of inheritance. Under the principle of representation, as is recognised by these
systems of laws, the son of a predeceased son represents his father for purposes of
inheritance. The doctrine of representation may be explained with the help of an example,
suppose P has two sons A and B. A has got two sons С and D and В has a son E. During the
life of P, his family members are his two sons (A and B), and three grandsons (C, D and E).
Unfortunately, В pre-deceases P, i.e. В dies before the death of P. Subsequently, when P also
dies, the sole surviving members of the family of P are A and three grandsons, C, D and E.
Under the doctrine of representation, E will represent his pre-deceased father В and would be
entitled to inherit the properties of P in the same manner as В would have inherited had he
been alive at the time of P’s death.

But, Muslim law does not recognise the doctrine of representation. Under Muslim law, the
nearer excludes the remoter. Accordingly, in the illustration given above, E will be totally
excluded from inheriting the properties of P. Both, under Shia as well as under Sunni law, E
has no right to inherit the properties of P. The result is that E cannot take the plea that he
represents his pre-deceased father (В) and should be substituted in his place.

Under Muslim law, the nearer heir totally excludes a remoter heir from inheritance. That is
to say, if there are two heirs who claim inheritance from a common ancestor, the heir who is
nearer (in degree) to the deceased, would exclude the heir who is remoter. Thus, between A
and E, A will totally exclude E because A is nearer to P in degree whereas, E belongs to the
second degree of generation. The Muslim jurists justify the reason for denying the right of
representation on the ground that a person has not even an inchoate right to the property of
his ancestor until the death of that ancestor. They argue that there can be no claim through a
deceased person in whom no right could have been vested by any possibility. But, it may be
submitted that non-recognition of principles of representation under the Muslim law of
inheritance, seems to be unreasonable and harsh. It is cruel that a son, whose father is dead,
is unable to inherit the properties of his grandfather together with his uncle.

Inheritance by Shia Law

Shia law divides legal heirs into three basic classes. These classes thereafter determine
distribution of an estate among legal heirs and how to give preference to one legal heir over
another. Appropriate appreciation of these classes helps one to understand Shia law of
inheritance as details of the system in one manner or another are linked to it. These classes
are the following:
Class 1:

(i) Parents, and

(ii) Children (male and female). The children also include their descendants
how low so ever irrespective of the fact whether they are descendants
of male or female children.

Class 2:
(i) Grandparents (true or false) how high so ever, and


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 (ii) Brothers and sisters (full, consanguine, and uterine) and their descendants
how low so ever irrespective of their gender.

Class 3:
(i) Paternal uncles and aunts,

(ii) Maternal uncles and aunts, and

(iii) Their children how low so ever irrespective of their gender.

Once the heirs are divided into the above classes, there are two basic rules which
need to be understood :

Firstly, as long as an heir (or more than one) is present from the class 1, no one will be
entitled to inheritance from the class 2: similarly, if there is an heir (or more than one) from
the class 2, no will have anything from the class 3. These classes lay down a basic
framework in which an estate of a Shia deceased is distributed except that deceased’s spouse
is dealt with differently. We will take up this matter in the next section.
Secondly, within the same class there is no difference between male and female heirs except
to the extent that a male heir will have double share than that of a female heir. For instance,
descendants of a Sunni deceased’s daughter are excluded from inheritance as per Sunni law
as they are regarded as distant kindred whose right to inheritance will only be entertained in
absence of the sharers and the residuaries, while his son’s descendants will be entitled to his
estate as they are regarded as the sharer or the residuary. Shia law does not differentiate
between descendants of son and daughter and they are placed in the same class.12 When one
descendant from the class is entitled, the other would also have his/her share. Similar to
descendants of son and daughter, Sunni law divides descendants of brothers and sisters into
the residuaries and distant kindred respectively, while Shia law does not prefer males over
females in these situations nor place their descendants in different classes.

Inheritance of Spouses:

As is apparent from the above three-fold classification of heirs in Shia law, spouses are not
placed in anyone of them. The above referred classes are jointly known as heirs by
consanguinity in Shia law, while spouses are termed as heirs by affinity. 13 The heirs by
consanguinity are also termed as heirs by Nasab, while the heirs by affinity are heirs by
Sabab.14 Thus, husband and wife form an independent category similar to Sunni law which
is only affected by presence or absence of deceased’s children. If there are children of a
deceased, husband or wife will inherit 1/4 or 1/8 respectively. But if a deceased dies
issueless, husband or wife will have 1/2 or 1/4 respectively. If a deceased husband leaves
behind more than one wife as legal heirs, they will share jointly in their prescribed share, i.e.
1/4 or 1/8.15
Table of sharers given below summarizes the right/share of the heirs of Group 1 to the estate
of a deceased under Shia Law:

HEIR SHARE
1. Husband 1/4 (where there is a lineal descendant)

12 Carroll, The Ithna Ashari Law of Intestate Succession, p.86

13
Verma, Mohammaden Law in India and Pakistan, p.371.
14
Ameer Ali Comentaries on Mahommedan Law, p.1088.
15
Ibid at p.1112.

12
 OR
1/2 (otherwise)
2. Wife 1/8 (where there is a lineal descendant)
OR
1/4 (otherwise)
3. Father 1/6
4. Mother 1/6 (where there is a lineal descendant)
OR
1/3 (in other cases)
5. Son All/ Residuary (where no daughter)
OR
Double of daughters
6. One Daughter 1/2 (where no son)
OR
½ of the share of son
7. Two Daughters (collectively) 2/3

8. Grand Children (only where all children have predeceased the testator) Portion of
their parents.

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 Sunni Law of Inheritance

According to Sunni law, legal heirs are divided into three classes, i.e. the sharers, the
residuaries and the distant kindred; while Shia law recognizes only two classes, i.e. the
sharers and the residuaries. Most of those who are regarded as distant kindred in Sunni law
relate to a deceased from his female descendants (for e.g. daughter’s children, son’s
daughter’s children) or other female relatives (for e.g. Mother’s father, mother’s brother and
sister, sister’s children etc. In Sunni law the paternal and maternal grandfathers are divided
into true and false grandfathers.16 Some schools of Sunni law do not award any share to
deceased’s brothers and sisters in presence of true grandfather owing to the reason that the
former steps into the shoes of the father in case of his death. In Sunni law, spouses do not
benefit under the principle of Radd/return in the first place, i.e. in presence of other sharers.
For instance, if a person dies leaving behind his wife and a daughter, the wife will inherit
1/8, and 7/8 will be given to the daughter (one half as a sharer and the rest under the Radd).

Table of sharers
Sharers Normal Share Conditions Variation of
under which shares
When only When two
the normal
one heir is or more
share is
present heirs are
inherited
present
Husband 1/4 In the 1/2 in
presence of absence of a
a child or child or child
child of a son of a son how
how low so low so ever
ever
Wife 1/8 1/8 In the 1/4 in
presence of absence of a
a child or child or child
child of a son of a son how
how low so low so ever
ever
Daughter 1/2 2/3 In the In presence

16
Mulla, Principles of Mohamedan Law, p.90.

14
 absence of a of a son she
son. becomes a
residuary
Father 1/6 In the In absence
presence of of a child or
a child or child of a
child of a son son how low
how low so so ever the
ever father
inherits as a
residuary.
Mother 1/6 In the 1/3 in the
presence of absence of a
a child or a child or child
child of a son of a son how
how low so low so ever,
ever, or two and not
or more more than
brothers or one brother
sisters, or or sister (if
even one any); but if
full, the wife or
consanguine husband and
or uterine the father, is
brother and also present,
one such then only1/3
sister. of what
remains
after
deducting
the share of
the spouse.

15
True 1/6 In the In absence
grandfather presence of of a child or
a child or child of a
child of a son son how low
how low so so ever, the
ever, and in true
absence of grandfather
the father or inherits as a
a nearer true residuary,
grandfather. provided
there is no
father or
nearer true
grandfather.
True 1/6 1/6 A maternal
grandmother true
grandmother
takes in
absence of a
mother, and
a nearer true
grandmother
and a
paternal true
grandmother
takes in
absence of a
mother,
father, a
nearer true
grandmother
and an
intermediate
true
grandfather.
Son’s 1/2 2/3 In absence In absence
daughter of a son, of a son,
how low daughter, a higher son’s
soever higher son’s son, or an
son, higher equal son’s
son’s son and
daughter, or when there
an equal is only one
son’s son. daughter, or
higher son’s
daughter

16
 the
daughter or
higher son’s
daughter
will take 1/2
and the
son’s
daughter
how low so
ever
(whether
one or
more) will
take 1/6.
Son’s 1/2 2/3 In absence In absence
daughter of a son, of a son or
daughter, or son’s son
son’s son and in
presence of
a only one
daughter
the son’s
daughter
(whether
one or
more) will
take 1/6. (In
presence of
a son’s son,
she
becomes a
residuary.)
Son’s Son’s 1/2 2/3 In absence In absence
Daughter of a son, of a son,
daughter, son’s son or
son’s son, son’s son’s
son’s son and in
daughter, or presence of
a son’s son’s only
son. daughter or
son’s
daughter,
the son’s
son’s
daughter
(whether

17
 one or
more) will
take 1/6. (In
presence of
a son’s son’s
son she
becomes a
residuary.)
Uterine 1/6 1/3 In absence
brother of a child,
Uterine child of a son
sister how low so
ever, father
or true
grandfather.
Full sister 1/2 2/3 In absence In presence
of a child, of a full
child of a son brother she
how low so becomes a
ever, father, residuary.
true
grandfather,
full brother.
Consanguine 1/2 2/3 In absence When there
sister of a child, is only one
child of a son full sister
how low so and she
ever, father, succeeds as
true a sharer, the
grandfather, consanguine
full brother, sister
full sister, or (whether
consanguine one or more
brother. ) will take
1/6, if she is
not
otherwise
excluded.
(With the
consanguine
brother she
becomes a
residuary).

Note:
1. A true grandfather is a male ancestor between whom and the intestate no female
18
 intervenes.
2. A true grandmother is a female ancestor, between whom and the intestate no false
grandfather intervenes.

 Rule of Radd/Return :


When an entire estate of a Shia Muslim is not consumed by his/her heirs and something is
left out of it, the rule of Radd/return is applied and the same is done in Sunni law. The
application of Radd is more frequent in Shia law because it accords less significance to
Ausbaat/residuaries as compared to Sunni law.17 In Sunni law an exhaustive list of the
residuaries reduces the occurrences of application of Radd. Whenever there is residue of an
estate of a deceased Sunni Muslim that will be given to any eligible residuary irrespective of
the fact how remotely he is related to the deceased.18 While such an exhaustive list is not
available in Shia law and even those who are regarded as the residuaries they cannot operate
beyond the sphere of their own basic class. For example, a person dies leaving behind a
daughter and his paternal uncle. As per Sunni law, the daughter will have one half, while the
rest will be inherited by his uncle. But if the deceased is a Shia Muslim, his daughter will
take the entire estate the first half as a sharer and another half after applying the Radd. The
reason for this sort of distribution is that the daughter belongs to the class 1 and the uncle is
an heir located in the class 3. The uncle is only entitled to inheritance if there is no heir from
the class 1 & 2.
Let us explain another example to appreciate how the role of Ausbaat/residuaries is restricted
in Shia law to allow more space to the application of Radd. If a person dies leaving behind
his father and a daughter. According to Sunni law, the daughter will get one half and the rest
will be inherited by the father as a residuary. In Shia law, a father is not regarded as a
residuary in presence of deceased’s daughter as the both are placed in the same class. Thus,
in the above example, the father and the daughter will first inherit as sharers and the residue
will be shared by them under the Radd in accordance with their respective shares.
Shia and Sunni Laws of Inheritance: A Comparative Analysis
Father=1/6,
Daughter=1/2,
 LCM=6,

Father=1/6, Daughter=3/6,

After applying the Radd: Father=1/4, Daughter=3/4.

In Sunni law, spouses are not entitled to any benefit under Radd except in a case where there
is no other relative of deceased alive including distant kindred. Shia law has added into this
list two more persons other than spouses: one is mother and the other is uterine
brother/sister.

 Principle of Aul/Increase:


17
Carroll, The Ithna Ashari Law of Intestate Succession, p.93-94.
18
Purohit, The Principles of Mohammedan Law, p.467.

19
The principle of Aul is not recognized in Shia law of inheritance and Shia scholars have expounded rules
to avoid its application.19 In Sunni law, whenever the calculated shares of heirs of a deceased are
increased from the supposed shares of that estate, the supposed shares are increased to match the number
of the calculated shares. In this manner, each sharer gets what is prescribed for him/her in the Quran in
terms of numbers, though the actual amount/quantity of his/her share is reduced.20 As it is not possible
to avoid situations which attract the application of principle of Aul, Shia jurists have devised an
innovative manner to resolve such situations. They have divided the sharers of a deceased into those
whose share is susceptible to reduction and those whose share is not liable to reduction. They have
placed daughters and sisters into the first category taking into account the fact that their prescribed
shares (one half and two thirds) could be reduced in those situations where there is a male counterpart
who converts them into residuaries. On the other hand, there are other sharers, e.g. parents, spouse and
uterine sister, whose share is minimally prescribed in the Quran which could not be reduced from that
minimal amount in any case. So, if there are heirs from both these categories and their calculated shares
are increased from the supposed shares, the heirs of the second category will have their prescribed
shares, while the heirs of the first category will bear the burden of avoidance of application of the
principle of Aul.
Let us explain this in an illustration. A female dies leaving behind her husband and two sisters. The
husband’s prescribed share in such a situation is 1/2, while two sisters’ 2/3. If we solve this proposition,
the husband will be entitled to 3/6 and the sisters 4/6. So, according to Sunni law, the Aul will be applied
to make the husband’s share 3/7 and the sisters 4/7. But Shia law resolves it differently by proposing
that the husband should be given 3/6 as his prescribed share is not susceptible to reduction, while the
sisters will jointly inherit 3/6 instead of 4/6 as their share can be reduced to circumvent the application
of Aul.
Cases
Sunni Law

Abdul Matin v. Abdul Aziz21

The facts of the case may be briefly stated as follows : One Abdul Gafur owned 4 kathas of land. After
his death, the land was partitioned by his heirs in the year 1937. On partition, his two daughters namely,
Salimon Nessa and Halimon Nessa got 1 K-3'Ls of land. Halimon Nessa sold away her half share in the
said land to her sister Salimon Nessa by registered sale deed on 24-1-40. Salimon Nessa thus became
absolute owner of IK-3Ls of land on and after the said sale on 24-1-40. Halimon Nessa died sometime in
1951 leaving behind her son, the plaintiff Abdul Matin as her sole heir. Later in 1953, Salimon Nessa
also died without any issue leaving behind her husband Kitab Ali, and her sister's son Abdul Matin, the
defendant No. 6. Kitab Ali, thereafter by a deed of gift dated 25-11-54, gifted the entire land belonging
to his wife to one Abdul Latif, who later sold the same to the defendant No. 5. The defendant No. 5 thus,
claimed title of the said land by virtue of purchase from Abdul Latif.

The court in this case held that the husband will get only half share of the land belonging to his wife ‘B’
and the other half will devolve on the plaintiff, sister’s son of the deceased who was a distant kindred.
Here, husband is only ‘sharer’ and so he will get 1/2of the share in the property as a share. Hence, there
is no residuary so the residue will not revert to the husband but it will go to the sister’s son as a distant
kindred.

Ali Sahib v. Hajra Begum22

19
Ameer Ali Commentaries on Mohammedan Law, p.1123.
20
Fyzee, Outlines of Mohammadan Law, p.331.
21
AIR 1990 Gau 70.
22
AIR 1968 Mys 351.

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In this case the Mysore High Court had to consider the question as to when the husband or the wife, as
the case may be, is entitled to inherit the other's property as residuary. In this case a Muslim had died
leaving behind his wife and two daughter's daughters, the daughter having pre-deceased him. The wife
had gifted her husband's entire property to her brother's son but the daughter's daughters claimed, being
distant kindreds, 3/8 share each in the properties as residuaries. The Court held that when a Hanafi
Mahomedan dies leaving a husband or wife and there are no residuaries the husband or wife, as the case
may be take their full share and the residue is divided among distant kindred.

Rukmanibai v. Bismillabai23

In the instant case an appeal was filed before the Madhya Pradesh High Court under section 348 of the
Succession Act, 1925 against the order where certificate was issued to the respondent daughter for the
debts and securities left by deceased. The Court held that the daughter was entitled to her share (1/2) as a
sharer, but as there was no residuary so the residue would also revert back to her. Thus, under the
circumstance the grant of succession certificate to the respondent was not illegal.

Shia Law

Aga Mahomed Jaffer Bindanim v. Koolsom Beebee24

In this case the Privy Council had to deal with issues arising out of the administration of the deceased
husband’s estate. The testator’s nephew, the plaintiff in that case, had been appointed as the executor
and trustee of the estate. Along with other instructions, the plaintiff had been instructed to pay the
respondent’s dower amount and any inheritance which she would be entitled to under Muhammadan
law. One of the questions before the Privy Council was: whether a widow, under Shia law, was entitled
to a share from land and the value of building upon that land. In accordance with this question, one of
the arguments put forth by the counsel of the respondent, who had relied on the concept of Fatawa
Alamgriri, was that the principle of non- inheritance of a childless Shia widow only applied to the extent
of agricultural land. The Privy Council rejected this argument, and held that the widow of the testator
was not entitled to any share in the immovable property of her husband.

Abdul Hamid v. Piare Mirza25

This case is concerned with ethe concept of distribution of property. The rule is that if the deceased left
only one heir the whole property would devolve upon that heir, except in the case of a wife. If the only
heir be a wife, the older view is that she is entitled to no more than her Quranic share which is 1/4th and
the surplus passes to the Imam, now to the Government of India. But in this case Ameer Ali’s opinion
was followed which is that there being no machinery now to take Imam’s share, the surplus should pass
to the wife.
23
AIR 1993 MP 45.
24
1897 25 Cal 9.
25
AIR 1935 Oudh 78.

21
Conclusion

The Islamic law of inheritance is a structure constructed on the foundations of pre-Islamic customary
law of succession. Succession starts only on the death of the deceased, and then only the property vests
in the heirs. Whenever a female inherits property, she takes her share absolutely and without
restrictions. The Muslim law of inheritance is a unique aspect of Islam. It helped shape to the current
form of Islamic algebra and it is a different, just system of law. Prophet Muhammad (PBUH) said:

‘LEARN THE LAWS OF INHERITANCE AND TEACH THEM TO THE PEOPLE, FOR THEY ARE
ONE-
HALF OF USEFUL KNOWLEDGE.’

The Islamic law of inheritance has always been admired for its completeness as well as the success with
which it has achieved the aim of not only providing estate for a single individual, but for adjusting claim
for all the nearest relations.

22
Bibliography

Books Referred:

i. Asaf A. A. Fyzee, Outlines of Muhammadan Law (Oxford Univ Pr (Txt); 5 edition (30 September
2008).
ii. M. Hidayatullah and Arshad Hidayatullah, Mulla Principles of Mahomedan Law, (Lexis Nexis
Butterworths Wadhwa Nagpur; Nineteenth edition (2010)).
iii. V.P. Bharatiya (Editor), Syed Khalid Rashid's Muslim Law, (Eastern Book Co; 4th Revised edition
edition (20 April 2004).
th
iv. F.B. Tayyabji, Muhammadan Law ( 4 edn., Bombay: N.M. Tripathi Private Ltd., 1968).

v. Dr. Paras Diwan, Muslim Law in Modern India, (8th Edition,Reprint 2008).

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