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Legal Succession For Presentation
Legal Succession For Presentation
1.FATHER
2.TRUE GRANDFATHER:
4.DAUGHTERS:
5.SON’S DAUGHTERS:
6.MOTHER:
7.TRUE GRANDMOTHER:
8.FULL SISTERS:
11. HUSBAND:
If no child or son’s child, how low soever, he takes
1/2; otherwise ¼.
12. WIFE:
COROLLARY:
B.Residuaries
NOTES:
C. Distant Kindred
(All relatives who are neither Sharers no
Residuaries)
CLASS 2. Descendants: Children of daughters and
son’s daughters:
1. Daughters son
2. daughter’s daughter
3. Son of no. 1
4. Daughter of No. 1
5. Son of No. 2
6. Daughter of No. 2 and so how low soever and
whether male or female
7. Son’s daughter’s son
8. Son’s daughter’s daughter
9. Son of no. 7
10. Daughter of No. 7
11. Son of No. 8
12. Daughter of No. 8, and so on how low soever,
and whether male or female.
NOTES:
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(a) Of consanguinity;
(b) Of affinity; and
(c) Of fosterage.
CLASSES HEIRS:
c/0 koranic
(i) Koranic Heirs (Shares);
(ii) Agnatic Heirs (Residuaries);
(iii) Uterine Heirs (Distant Kindred);
SUBSIDIARY CLASSES:
3 Kinds of Takalihuf)
Example:
(1) 8÷2= 4 (2) 6÷2= 3
(3) 4÷2= 2 (4) 6÷2= 3
2x6 = 12 3x4 = 12
Illustrations
(1) Al Tamasul –
(A) Wife dies without a child. The only heir is her
husband.
Solution:
The share of the surviving husband is ½ of the
estate, since the descendant left no child.
½ is for the husband (only share)
½ is for the residue.
The procedure is divide and minus. First, find the
root of the problem of ½ and ½.
The root of the problem – 2
2÷2 = or ½ ( 2 as root of the problem is under in a
fraction).
(B) Supposing the wife left a husband and one
son, what is your computation:
Solution:
The share of the husband is only ¼ not 1/2 , since
there is a son.
The procedure is divide and minus. The root of the
problem is 4.
4÷4 = 1 or ¼ 4 is under in a fraction, since
4-1 = 3 ¾) It is the root.
Therefore: The share of the husband is ¼ and the
shrae of the son is ¾.
(C) Suppose the wife left two sons and a husband,
what is your computation?
Solution is, the husband has ¼, the two sons have
¾.
The procedure is divide and minus.
The root of the problem – 4
4÷2 = 1 or ¼ for the husband
4-1 = 3 or ¾ for two sons.
Since ¾ cannot be divided between the two (2)
sons, the procedure is to find the new root of the
problem or lower denominator. This is called the
doctrine of Correction. Since, there are two sons we
should multiply the original root of the problem by 2,
to find the new Root of the problem.
Illustration:
Original Root of the problem 1/4 x 2 equals 2/8.
share of the husband, and 3/4x2 = 6/8 for the two
sons at 3/8 each.
(D) Suppose the wife left two sons, and one
daughter, what is your computation?
Solution:
The share of the husband is ¼ and ¾ goes to the
two sons and one daughter.
Sine the share of the son is double than that of
the daughter, two sons and one daughter equals five
(5) bodies and since ¾ cannot be divided by five (5),
the procedure is to find a new Root by the Doctrine of
Correction. Multiply 1/4 x5 = 5/20 as the share of the
husband and 15/20 as the share of five bodies, as
follows: 3/20 for the daughter, 6/20 for one son and
6/20 for another son = 20/20.
Let us invert the illustration. Instead of the wife
who dies, it is now, the husband who dies.
(A) Suppose the husband dies leaving no child nor
heir except the wife.
Solution:
Wife gets ¼ if she survives alone without a child.
The procedure is divide and minus.
Root of the problem is 4
4÷4 = 1 or 1/4, for wife
4-1 = 3 or ¾, for residue.
(B) Suppose the husband dies leaving the wife
with two sons.
Solutions:
The wife gets 1/8 only if she survives with two
sons
Root of the problem is 8
S÷8 = 1 or 1/8 for wife
8-1 = 7 or 7/8 for two sons
Since 7/8 cannot be divided equally between two
sons, the procedure is the Doctrine of Correction – by
multiplying the share by the number of bodies. Since
it is 2 sons.
1/8 x 2 = 2/16, for the wife
7/8 x 2 = 14/16, for the two sons at 7/16 each of
the two sons.
(14/96 son
56 (14/96 son
14/96 son
14/96 son
96/96 = The Estate
II. TAKALHUF
Illustrations:
A person dies leaving his wife and full sister, what
is your computation?
Solution:
Since there is no child, the wife receives 1/4, the
share of the sister is ½, she being alone.
Root of the problem is 4.
Procedure is to divide, plus and minus.
4÷4 = 1, share of the wife
4÷2 = 2, share of full sister
1+2 = 3
4-3 = 1 residue
Illustratios:
Solutions:
The share of the wife is 1/8 and the father has 1/6.
two sons and three daughters are residuaries.
Solutions:
Share of the wife is 1/8
Share of the daughter is ½
Share of the mother is 1/6
Share of four full sisters is residue
Here, the root of the problem is 24 or common
denominator.
24÷8 = 3, share of the wife
24÷2 = 12, share of the daughter
24÷6 = 4, share of the mother
3+12+4 = 19
24-19 = 5, residue for the full sisters
Since 5 cannot be divided for the full sisters
For new root of the problem. This is the Doctrine of
Correction, by multiplying all shares by four sisters.
3x4 = 12, share of the wife
12x4 = 48, share of the daughter
4x4 = 16, share of the mother
5x4 = 20, share of 4 full sisters at 5 each.
Illustrations:
A person dies leaving as heirs, a husband and two
full sisters.
Solutions:
The share of the husband is ½
The share of two full sisters is 2/3
Root of the problem is 6
6÷2 = 3, share of the husband
6÷3 = 2, share of the one sister
2x2 = 4
3+4 = 7
Hence, the total share of 7 exceeds the root of the
problem which is 6 by 1. Therefore, we used AUL or
increase by increasing the root of the problem from 6
to 7 to equal the root of the problem with the total
share which is 7.
Hence: 3/6 will be 3/7
4/6 will be 4/7
7/7 or 1.
(a)
Husband . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.½
(b) 2 full sisters . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 2/3
Illustrations:
Solution:
The share of grandmother is 1/6
The share of 2 uterine sisters 1/3
Thus, the root of the problem is 6
6÷6 = 1, share of grandmother
6÷3 = 2, share of 2 uterine sisters
6 is reduced to 3, thus,
1/6 is reduced to 1/3
2/6 is reduced to 2/3
Illustration:
(a) Mother . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1/6
Daughter . . . . . . . . . . . . . . . . . . . . . . . . . . .
½
(c) Wife . . . . . . . . . . . . . . . ¼
Sister (f or c) . . . . . . . ¾ (1/2 as sharer and ¼
by Return)
(h) Wife . . . . . . . . . . . . . . ¼
4/16
Full sister . . . . . . . . . . ½ = 3/6 increased
to ¾
of ¾ 3/16
11/12 16/16
(k) Husband . . . . . . . . . . . ½
Daughter’s son . . . . . ½
Illustrations:
Illustrations:
Husband . . . . . . . . . . . . . . . . . . . ¼
Father . . . . . . . . . . . . . . . . . . . . 1/6 increased
to ¼ of
¾ = 3/16
Daughter . . . . . . . . . . . . . . . . . . ½ = 3/6
increased to ¾ of
¾ = 9/16
Illustrations:
Mother . . . . . . . . . . . . . . . . . . . 1/6
Father . . . . . . . . . . . . . . . . . . . . 1/6 increased
to ¼ of
5/6 = 5/24
Daughter . . . . . . . . . . . . . . . . . . ½ = 3/6
increased to ¾
of 5/6 = 15/24
2 full brothers . . . . . . . . . . . . . (excluded)
(b)Wife . . . . . . . . . . . . . . . . . . ¼ = 3/12
Uterine sister . . . . . . . . . . 1/6 = 2/12
Full sister . . . . . . . . . . . . . . ½ (as sharer) +
1/12
(by Return) = 7/12
(E) Double Inheritance or Vested Interest
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COMMENTS:
In Article 133 of the Muslim Code, the
administration of the estate of the deceased first
devolves upon the executor mentioned in the will and
in the absence thereof, in the heir or administrator
appointed by the Court.
The governing school of law to be followed in the
probate of the will or settlement of the estate is the
school of law or maddhab of the decedent, as
provided for in Article 134 of the Muslim Code. If the
decedent’s school of law is not known, then Shaffi
School of Law together with the special rules of
procedure adopted pursuant to this Code shall be
given preference. According to established Islamic
jurisprudence, the order of preference of claims from
the estate of the decedent shall be in the following
order, (1) Funeral or burial expenses; (2) Debts of
decedent; (3) Legacies and (4) The distribution of
shares among heirs. Under Article 135 of the Muslim
Code, the payment of the Muslim Code of unpaid
taxes, both estate and inheritance taxes take
precedence or priority to the first, funeral or burial
expenses. Likewise, the expenses for probate,
administration and other judicial expenses take
priority to the debts of the decedent. Furthermore,
the unpaid dower comes after the distribution of
shares among heirs. In other words, while the
established principles of Islamic law enumerates 4
orders of preference, Article 135 of the Muslim Code
enumerates seven orders of preference of claims to
the estate of the decedent. According to Mohammad
Ali, debt as shown in Verses 11 and 12 of the Holy
Quran is the first charge. The expenses of burial are
considered debt. Likewise, the probate,
administration and other judicial fees as well as
unpaid dower are also considered debts.
Consequently, the order of preference of claims
against the estate of the decedent are only three (3),
namely: (1) debts; (2) legacies and (3) lastly,
distribution of the share of the heirs, according to
Islamic Law.
A perusal of the comments of Sayed Khalid Rashid
is informative on this score, namely:
A. Administration of the Estate
Commenting upon the principles governing
“administration of estates” of a Muslim in India,
Wilson observes:
This topic belongs partly to the substantive law of
succession and partly to the department of adjective
or procedural law. Consequently, we might expect to
find in fact, that in British India, it is partly regulated
by Muhammadan Law, and partly by statutory
enactments. The question, what becomes of a man’s
rights and obligations at the moment of his death? Is
a question of substantive, and therefore (for
Muhammadans in British India) of Muhammadan Law.
But such question as, whose duty is to give orders to
the undertaker? To whom should the creditors of the
dead man send in their bills? From whom will his
debtors be safe in taking a receipt? Who is entitled to
take immediate charge of the property? And above all,
what may, and what may not be done without the
intervention of a public officer? Are questions of
adjective law, the answers to which are not to be
sought, in British India, from the Muhammadan Law
sources, but from Anglo-Indian codes or the practice
of the Courts. Unfortunately, the ancient
Muhammadan text writers could not foresee this
curious dismemberment of their system by a non-
Muhammadan Legislature, and saw no special reason
for drawing a sharp line between substantive and
adjective law in their expositions. Even in England the
lawyer in search of a rule substantive law in
sometimes driven to infer it from some old decision on
a point of procedure; and there is therefore nothing
surprising in the fact that the Muhammadan answer to
the first of the above questions has to be gathered
mainly from passages dealing professedly with duties
of the kazi.
The duty of administering an estate, according to
the law of Islam, rests on the state, acting through
the kazi. Hence it is correct to say that administration
as understood in modern law, involving necessarily
the recognition of an executor or the appointment of
an administrator, was unknown to Islamic
jurisprudence.
Administration was introduced into the fabric of
Muhammadan Law by the reception of the English
concept of administration and later by the enebling
provisions of the Probate and Administration Act,
1881.
According to the Muslim legal theory, the property
of a deceased Muslim vests in his heirs immediately
after his death. But it is subject to the injunction that
the heirs are entitled to take only that residue which
is left after the payment of debts and legacies
necessarily involves the administration of the estate,
such administration may be said to implied in the very
spirit of Muslim Law itself.
Muslim Law recognizes for distinct purposes to
which the estate of the deceased is successively
applicable:
(1) his funeral expenses;
(2) his debts;
(3) his legacies; and
(4) the claim of his heirs
But Muslim Law is replaced by the Indian
Succession Act, (XXXIX of 1925), which lays down the
following scheme of the order of priority in which the
payment are to be made:
(1) Funeral expenses and death-bed charges;
(2) Expenses of obtaining probate or letters of
administration;
(3) Wages for services rendered to the deceased
by a laborer or servant within three months of his
death;
(4) Debts, according to their own priorities
(discussed later on in this chapter);
(5) Legacies, not exceeding one-third of what has
been left after payments of items mentioned in (1) to
(4) above.
This brings us to the consideration of an
important question; whether vesting of the estate in
the heirs takes place immediately on the death of the
propositus or his dependent upon the payment of
debts.
Vesting of Estate – Delivering his famous
judgment in Fafri Begam V. Amir Muhammad, Mr.
Justice Mahmood observed:
It is well known that the Muhammadan Law of
inheritance is based upon a passage in the fourth
chapter of the Koran, which is Sale’s translation is
thud rendered: ‘God hath thus commanded you
concerning your children: A male shall have as much
as the shar of two female, but if they be female only,
and above two in number, they shall have two-thirds
part of what the deceased shall leave; and if there be
but one, she shall have the half. And the parents of
the deceased shall have each of them a sixth part of
what he shall leave, if he has a child; but if he has no
child, and his parents be his heirs, then his mother
shall have the third part. And if he have brethren, his
mother shall have a sixth part, after the legacies
which he shall bequeath and his debts be paid.
In reading this passage, I have emphasized the
words after the legacies which he shall bequeath and
his debts be paid. This phrase gave rise to two
difficulties in the minds of the Muhammadan jurists.
The first was, whether the circumstance that legacies
were mentioned before debts gave the former
precedence over the latter, in the administration of
the estate of deceased persons; and the second was,
whether the word after related to the devolution of
inheritance, or to the ascertainment of the extent of
the shares to be allotted to the various heirs. The
explanation of Baizawi, one of the greatest
commentators on the Koran, whose views have been
universally adopted by Muhammadan jurists, says
that the word after, as used in the Koran, simply
refers to the balance of the estate after the payment
of debts and legacies, but does not affect the question
of devolution. That this is the interpretation accepted
by the Muhammadan jurists in general is best known
by a passage in Al sirajiyyah, a treatise of the highest
authority on the Muhammadan Law of inheritance,
which Sir William Jones translated about a century
ago; and in citing the passage I cannot do better than
adopt his words: Our learned in the Law to whom God
be merciful say: There belong to the property of a
person deceased four successive duties to the
performed by the Magistrate – first, his funeral
ceremony and burial, without superfluity of expense
yet without deficiency; next, the discharge of his just
debts from the whole of his remaining effects; then
the payment of his legacies out of a third of what
remains after his debts are paid; and lastly, the
distribution of the residue among his successors,
according to the Divine Book, to the Traditions and to
the Assent of the Learned.” I have quoted this
passage to show the priority possessed by the three
charges to which the estate is subject when inherited
by heirs. This order of priority is, as is obvious from
the passage, merely a direction as to the
administration of the estate, and has no bearing upon
the question of the exact point of time when
inheritance devolves upon the heirs. When they
inherit the property, they take it, of course, subjects
to these three prior charges, as they would subject to
mortgages – the difference being (as poined out by
the Privy Council in the case which I have already
cited) that an incumbrance by way of mortgage
follows the property even in the hands of bonafide
purchaser for value, with or without notice of the prior
encumbrance; while the three charges on the estate
of deceased Muhammadan as described in Al
Sirajiyyah cannot do so. It is one thing to sat that
these three charges take precedence of the
inheritance, in the administration of the estate and its
distribution among heirs, and it is another thing to
say that the inheritance itself does not open up until
those charges are satisfied. And it is obvious that all
the arguments adopted by Markby, J., as to debts,
would, according to his hypothesis, necessarily apply
also to funeral expenses and his legacies, which, like
debts of the decased, are charges upon his estate. But
I am unaware of any rule of Muhammadan law which
would render such charges, or even mortgages , an
impediment to the devolution of property on the heirs
by inheritance. Funeral expenses, debts, and legacies,
or any one or more of them may indeed absorb the
estate of the deceased, defeating every succeeding
charge; and it is obvious that if nothing is left for the
heirs they can take nothing. But this is a proposition
widely different from saying that the devolution of
inheritance is suspended till the various charges are
satisfied. Indeed, upon this point, the books of
muhammdan jurisprudence leave no doubt. I have no
doubt in my mind that the devolution of inheritance
takes place immediately upon the death of the
ancestor from the property is inherited.
1. Legal representatives of a deceased Muslim
B. Payment of Debts
Illustration:
Illustration:
Illustration:
A Muslim, who is under debt of Rs. 3,200, dies
leaving a widow, a son and daughters. They divided
the estate without paying the debt; the widow taking
1/8, the son 7/16, and each daughter 7/32. The
creditor sues the widow and the son for the whole of
the debt, i.e. Rs. 3,200. But the widow is liable to pay
only (1/8x 3200 = 400) Rs. 400 and the son (7/16 x 200
= 1400) Rs. 1,400. They are not liable for the whole
amount of debt.