ICFAI UNIVERSITY

DEHRADUN

FAMILY LAW WEEKLY ASSIGNMENT-VII

TOPIC- SUCCESSION AMONG MOHAMMEDAN

ENROLLMENT ID- 18FLICDDN02175

SUBMITTED TO SUBMITTED BY

FACULTY OF FAMILY LAW TWINKLE RAJPAL

DR. ASHISH KUMAR SINGHAL BALLB(Hons.)-II YEAR

SECTION-C

BATCH 2018-2023
 SUCCESSION AMONG MOHAMMEDAN

Succession under Hanafi Law

As far as Muslims are concerned, the law of succession falls into two broad streams, the Hanafi law of
succession and the Shia law of succession. 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 Shariat Laws (Application) Act. The Muslim law
of succession is derived from the Sharia.

The primary source of the Muslim law of succession flows from the Holy Quran Ijmas, the Sunnas, and the
Qiyas, from all of which rules pertaining to succession can be gleaned.

The Muslim law of inheritance is a superstructure constructed on the foundation of preIslamic customary law of
succession.

In Islamic law distinction between the joint family property and the separate property has never existed, and in
India Muslim law does not recognize the joint family property.

Since under Muslim law all properties devolve by succession, the right of heir-apparent does not come into
existence till the death of the ancestor. Succession opens only on the death of the ancestor, and then alone the
property vests in, the heirs.

Customary Principles of succession

In the pre-Islamic Arabia, the law of inheritance was based on, what is called, comradeshipin-arms, and, on this
basis, even the wife and the children were excluded from inheritance. The four basic principles of the pre-
Islamic law of succession were: first, the nearest male agnates or agnates succeeded to the total exclusion of
remoter agnate. Thus, if a Muslim died leaving' behind a son, and a son of a predeceased. Son, then the son
inherited the entire property, and the grandson was totally excluded. Secondly, females were excluded from
inheritance; so were cognates. Thus, a daughter or a. sister or a daughter's son or sister's son could never
succeed to the property. Thirdly, the descendants were preferred over ascendants and, ascendants over
collaterals. For instance, in the presence of a son, father could not succeed. Similarly, in the presence of father,
brother could not, inherit. Fourthly, where there were more than one male agnates of equal degree, all of them

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inherited the property and shared it equally, taking per capita. For example, if a person died leaving behind
three brothers, all of them succeeded and each took one-third of the estate.

Islamic Principles of succession

The Prophet interposed the following few principles on the aforesaid principles of customary law of succession.
First, the husband and. the wife, being equal, is entitled to inherit to each other. Secondly, some near females
and cognates are also recognized and enumerated as heirs. Thirdly, the parents and certain other ascendants are
made heirs even when there are descendants. Fourthly; the newly created heirs (those who were not entitled to
inherit under customary law) are given specified shares. Fifthly, the newly created heirs inherit the specified
shares' along with customary heirs, and not to their exclusion. After allotting the specified share to the newly
created heirs, who are called sharers, 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.

Definitions:

Agnates- An agnate is a. relation who is related to the deceased whole through males. Thus, the following are
the examples of agnates, son, son's son,son's son's son, son's daughter, son's son's daughter, father's father,
father's,mother, father's father's .father; father's father's,mother..

Cognates- A cognate is a relation who is related to the deceased through one, or more females. For example,
the following are cognates: daughter's son, daughter's daughter, mother's father, father's mother's father.

Collaterals- Collaterals are descendants in the parallel lines from the common ancestor or ancestress.
Collaterals may be agnates or cognates. Thus, consanguine brothers and sisters, paternal aunts and uncles are
agnate collaterals. Maternal uncles , aunts, uterine brothers and sisters are Cognate, collaterals.

Heir- A person who is entitled to inherit the estate of another after his deaths known as an heir.

True grandfather- A male ancestor between whom and the deceased no female intervenes is known as the
true grandfather. For instance, the father's father, father's father's father and his father how high so ever are all
the true grandfathers.

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False grandfather- A Male ancestor between whom and the deceased, a female intervenes is known as the
false grandfather. For instance, mother's father, mother's father, father’s mother's father are false grandfathers.

True grandmother - A female Ancestor, between whom and the deceased no false grandfather intervenes are
known as the true grand mother. Thus, father’s mother, mother's mother, father's mother's mother, father's
father's mother, Mother’s mother's mother are all true grandmothers.

False grandmother- A female ancestor between whom and the deceased a false grandfather intervenes. Thus,
mother's father's mother is a false grandmother.

Son's son how low so ever- Lineal male descendants are known as son's son how low so ever. For instance,
son's son, son's son's son and so on, are all son's son how low soever.

Son's daughter how low soever- The female children of lineal male descendants are known as son's daughter
how low soever~ Thus, son's daughter, son's son's daughter, and so on, "are also son's daughter how low soever.

Inheritance under Sunni (Hanafi) Law

Under any law of intestate succession, two questions that arise are: (i) Who are the heirs of the deceased, and
(ii)To what share the heirs are entitled. Muslim law-givers have gone into details in laying down the categories
of the persons who are entitled to participate in the inheritance, and the respective shares to which each category
of heirs are entitled to receive.

Inheritance under Sunni (Hanafi) Law

Under any law of intestate succession, two questions that arise are: (i) Who are the heirs of the deceased, and
(ii)To what share the heirs are entitled. Muslim law-givers have gone into details in laying down the categories
of the persons who are entitled to participate in the inheritance, and the respective shares to which each category
of heirs are entitled to receive.

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Heirs

Islamic law superimposed on the customary structure certain blood relations who are either equally near, or
more near, to the deceased than the customary heirs. Among these new heirs are certain females, and some
ascendants and collaterals. The spouse of the deceased is allowed to take a share in the inheritance, as a. relation
by affinity.

The sharers are allotted their specified shares. Then whatever is left after allotting share 'to the sharers the rest-
residuary is divided among the customary heirs. These heirs are commonly called "residuary". This term came
into vogue on the assumption that after giving specified shares to the sharers, whatever is left is given to them.

Distribution of Assets among the Sharers and Residuaries

Among the heirs the sharers are to be given their share first,then the residue is to be distributed among the
residuaries.

• In the absence of the sharers, the residuaries take the entire estate.

• In the absence of both the sharers and the residuaries, the estate devolves on the distant kindred.

• In their absence, the estate goes to the State.

Husband and Wife

If a Muslim male dies leaving behind a widow and children, then the widow takes 1/8, and the residue (i.e.,
7/8) goes to children. If he dies leaving behind a widow and no child, then the widow, takes 1/4. If he dies
leaving behind more than one widow, then 1/8 (when there are children), or 1/4 (when there are no children), is
distributed among them equally.

If a Muslim female dies leaving behind her husband and children, then the husband takes 3/4 as a sharer and the
residue of 1/4 goes to the children. If she dies leaving behind no child, then the husband takes 1/2 as a sharer.
Thus, a Muslim female dies leaving behind her husband, H and her father F. H will take 1/2 as a sharer and F
will take the remaining 1/2 as residuary.

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Father and True Grandfather

The father is always an heir. Under no circumstances can he be excluded from inheritance. The true grandfather,
being a substitute; is always excluded by the father. A nearer grandfather always excludes a remoter
grandfather.

The position of father as an heir may be discussed under the following circumstances: (a) Where the deceased
had left children, the' father takes 1/6 share. Thus, when P dies leaving behind his father and a son. the father
will take 1/6 and the son, will take 5/6, (b) Where there are no children (or child) or agnatic descendants, the
father and, in his default, the grandfather, takes as a residuary, (c) Where a Muslim dies leaving behind a
mother and a father, the mother takes 1/3 as sharer, and the father takes 2/3 as residuary, (d) In certain
circumstances the father may take in dual capacity, as a 'sharer and as residuary. Thus, where a Muslim dies
leaving behind his father and a., daughter, then the daughter takes 1/2 as a sharer, the father takes 1/6 as sharer
and' the residue of estate, i.e., 1/3, he takes as a residuary: Thus, the father will take 1/6+1/3=1/2. In this
situation the position of the grandfather (in the absence of the father) will be the same, since he is a substitute
for father.

The true grandfather is not an heir under Shia law.

Mother and True Grandmother

Mother is never excluded from inheritance. She takes 1/3 where there are no children, and she takes 1/6 where
there are children. The true grandmother inherits in certain circumstances:

(a) the maternal grandmother is excluded by mother or nearer true grandmother, paternal or maternal. (b) The
paternal true grandmother is excluded by the father, the mother and by a nearer true grandmother, paternal or
maternal, as well as by a nearer true grandfather; Thus, P, a Muslim, .dies leaving behind his mother M, sons
son, S and a daughter, D. M will take 1/6 as sharer, and the rest will go to D, S and S1 as residuaries: D taking
1/6, S taking 2/6 and S1 taking 2/6.

(c) The mother takes one-sixth share if a Muslim dies leaving behind two sisters, or one brother and a sister
(full, consanguine or uterine). In the presence of the father, sisters do not inherit. It is a curious aspect of
Muslim law that an heir may be totally or partially excluded from inheritance by another, yet his presence may
exclude another heir partially or totally., Thus, P dies leaving behind his mother, M, father, F, two full sisters,

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PO and PD1. M will take 1/6, as on account of two sisters her share is only 1/6. But FD and PD1 are excluded
on account of the presence of F. F will take remaining 5/6.If the deceased dies leaving behind mother and only
one sister or one brother and no child, then the mother takes 1/3 share. Thus, P dies leaving behind his mother,
M, a sister PD and father F: Mother will take 1/3; D will be excluded because of the father. F will take the
remaining 2/3

(d) When a Muslim dies leaving behind husband/wife, mother and father, the rule is that the mother will take
only 1/3 of what is left after allotting the share to the wife/husband. Thus, a Muslim dies leaving behind her
father P, her husband H, and her mother M. H, as sharer, will take 1/2 (the rule is that whether there is no child
or child of a son how low soever, he takes 1/2 share). The mother will take 1/3 of 1/2, i.e., 1/6. F will take as a
residuary heir the remaining 1/3.

The true grandmother is not an heir under Shia law

Daughter and Son's Daughter how low soever

The daughter takes a share in the estate of the deceased parent, when there is no son, when once she takes 1/2:
when two or more, all of together take 2/3. With sons she takes as a residuary. When daughter alone is the heir,
she takes her half share and the other half to her as residuary.

The son's daughter takes 1/2, when one, 2/3 when two or more, in the absence of son, daughter's higher son’s
son’s son, daughter or equal son's son with equal son's son's son, she takes as residuary.

The son's daughter is not an heir under Shia law.

Sisters

The sister is a sharer, one. sister takes 1/2 share; two or more take 2/3.

(a) But she is not a primary heir. She, takes only in the absence of a son, son's son, how low soever, father and
true grandfather.

(b) With full brother (and in certain cases with daughter) she becomes a residuary.

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(c) If there are more than one full sister, consanguine sister is excluded. But where there is only one sister then
consanguine sister takes 1/6.

Uterine Brother and Uterine Sister

The uterine brother and uterine sister are not primary heirs. They inherit only in certain circumstances. (a) The
uterine brother and uterine sister are excluded by a child, son of a child how low soever, father, true
grandfather.

(b) A full brother or a full sister does not exclude a uterine brother or a uterine sister.

(c) Whenever the uterine brother and sister inherit they take equal share; the rule of male taking double portion
does not apply to them.

(d), 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, and between them share it equally.

Residuaries: Distribution of Assets

We would proceed to give a few more examples where the residuaries predominate. .

All residuaries are related to the deceased through males. Residuaries may be classified as: (a) descendants of
the deceased, (b) ascendants of the deceased, and (c) collaterals of the deceased. The collaterals may be further
divided into: (i) descendants of the deceased's father and (ii) descendants of the deceased's father's father how
high soever. .

It should be noted that Six' sharers inherit as residuaries in certain circumstances. These are:

a) the father,

b) true grandfather how high soever,

c) daughter,

d) son's daughter,
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e) full sister and

f) Consanguine sister.

Doctrine of radd or return

When there is surplus left after allotting the shares to the sharers in accordance with their entitlement, and there
are no residuaries to take the surplus, then the doctrine of return lays down that the surplus is to be distributed
among the sharers in proportion to their respective shares. This doctrine, recognizes one exception, viz., neither
the husband nor the wife is entitled to the return so long as' there is alive another sharer or a distant kindred. But
in India this is not the law. In the absence of a sharer or distant kindred, the surplus, returns to the husband or
the wife, as the case may be. Thus, under Muslim law of modern India, the doctrine of return lays down: (i) the
surplus is distributed among the sharers in proportion to their shares. (ii) But the husband or the wife is not
entitled to return, so long as there is a sharer or distant kindred alive. (If there is no sharer or distant kindred,
then the surplus returns to the wife or husband.

Escheat in Muslim Law

The Doctrine of Escheat is accepted by Muslim Law. However, the property escheated does not devolve upon
the Government by way of inheritance as ultimus haeres but as bait-ulmal (public treasury) for the benefit of
Mussalmans only.

According to Sunni Law, on failure of all the heirs and successors, the property of a deceased Sunni
Mohammedan escheats to the Government.

According to Shia Law, on failure of all the natural heirs, the property of a deceased Shia Mohammedan
escheats to the Government