SUNNI LAW OF INHERITANCE

INTRODUCTION:

Muslim jurists gave a great deal of importance to the laws of inheritance, and they were never
tired of repeating the saying of the Prophet: Learn the laws of inheritance, and teach them to the
people; for they are one half of useful knowledge; and modern authors have admired the system
for it utility and formal excellence.1

According to Tyabji, “the Muslim Law of Inheritance has always been admired for its
completeness and the success with which it has achieved the ambitious aim of providing not
merely for the selection of a single individual or homogeneous group of individuals, on whom
the estate of the deceased should devolve by universal succession, but for adjusting the
competitive claims of all the nearest relations.”

No distinction is made about moveable and immoveable property and also about ancestral and
ancestral property in Islamic law. In Sardar Nawazish Ali Khan case, the court observed that the
concept of family is simple; it comprises all forms of property and include both corpus and
usufruct.

Birth right is also not rcognized by Islamic law. Right of inheritance arise only on the death of a
certain person. The right of an heir-apparent or presumptive comes into existence for the first
time on the death of the ancestor, and he is not entitled until then to any interest in the property
to which he would succeed as an heir if he survived the ancestor.2

Sunni Law of Inheritance:

Generally, the Sunni Law is led by the Hanafis because in India most of the Sunnis are Hanafis,
so we will discuss the Hanafis Law of inheritance.
1
Asaf A. A. Eayzee, Outlines of Mohammedan Law, pp 290-290.
2
Abdul Wahid v. Nuran Bibi (1885) 11 Cal. 597, 12 I.A. 91; Humeeda v. Budlum (1872) 17 W.R. 525.
The jurists of Hanafi School divided heirs into seven classes, the three principle classes and the
four subsidiary classes.

The three principle classes are:

(i) Quranic heirs (sharers)

(ii) Agnatic heirs (residuaries)
(iii) Uterine heirs (distant kindred).

Subsidiary classes are:

(i) Successor by contract

(ii) Acknowledged kinsman
(iii) Sole legatee
(iv) The state, by escheat.

Each of the first two categories follows its own rules, and generally heirs of both categories
inherit together. However, the specific constellation of each case and the various combinations of
quranic and agnatic heirs may influence the positioning of heirs within one or the other category.
Among the heirs the sharers are to be given their share first, and then residue is to be distributed
among the residuaries. In the absence of sharers, residuaries take the entire estate. In the absence
of both the shares and residuaries, the estate devolves on the distant kindred.

(i) Quranic heirs:

Sharers are those heirs who are entitled to get a prescribed share from the heritable property. The
Sharers and their respective shares in the property of a deceased are given in Quran. The Qur’an
deals very exhaustively with the law relating to inheritance, and the first class of heirs consists of
certain of certain close relations of the deceased to whom a specific share (called sahm) is
allotted in the Qur’an. In the distribution of property, the Sharers get preference over the other
class of heirs, therefore, first of all the respective share is allotted to each Sharer. It may be noted
that Sharers are those heirs whose respective shares are given in Quran; therefore, their shares
cannot be altered by any human effort.
The term ‘sharers’ is not a happy one and does not convey either the literal meaning of the
Arabic original or its deeper significance and therefore the term qur’anic heir is proposed. 3 Many
scholars used the same expression in their writings. The translation of the Sirsjiyah published in
1792 by William Jones used the word ‘sharers’ and Macnaghten also used the same expression.
To be fair to the older scholars it is necessary to observe that the term is derived from the exact
fractional ‘sharers’ (Arabic, sahm. pl siham) fixed by the Holy Book. 4 These fractions are in six
in number, to wit, 1/2, 1/4, 1/8, 2/3, and 1/6 ; the persons to whom shares are allotted are
‘sharers’, and as the fractional shares are specified in the Qur’an they are in the highest sense
‘obligatory’, that is ‘farida’. 5

According to Hanafi law the following twelve relations constitute the Quarnic heir:

(1) Husband, or (2) wife, (3) father, (4) true grandfather hhs, (5) mother, (6) true
grandmother hhs, (7) daughter, (8) son’s daughter hls, (9) full sister, (10)
consanguine sister (11) uterine brother, (12) uterine sister.

Surviving Spouse:

The surviving spouse always inherits and the share of the surviving spouse varies depending
upon the presence of a child or child of a son. In case a woman dies, her husband takes 1/4 th of
her property in presence of a child or child of a son and if there is no child or the child of a son
husband takes half of the property. In case a man dies, his widow takes 1/4 th of his property in
absence of a child or child of a son, and in their presence, it is 1/8th share.

Illustration6:

(i) A Muslim man dies and is survived by his widow and a son. Here the widow will
take 1/8th and the son as a residuary will take 7/8th of the property.

(ii) A Muslim woman dies and is survived by the husband and a son and a daughter.
The husband would take 1/4th and 3/4th would be divided between the son and

3
A.A.A. FAYZEE, Outlines of Muhammadan Law, Oxford University Press, New Delhi (4th edn., 1974)
4
A.A.A. FAYZEE, Outlines of Muhammadan Law, Oxford University Press, New Delhi (4th edn., 1974).
5
A.A.A. FAYZEE, Outlines of Muhammadan Law, Oxford University Press, New Delhi (4th edn., 1974).
6
Poonam Pradhan Saxena, Kusum & Poonam Pradhan Saxena - Family Law, LexisNexis India.
 daughter so that the share od daughter would be half of the share of the son.

Daughter will take 1/4th and son will get 1/2th of the property.

FATHER

The property is always inherited by the father. Father is a primary heir and has a fixed 1/6 th
share as a sharer which he inherits along with a child or the child of a son. In their absence he
inherits as a residuary and can take to the extent of total property in absence of any other
sharer.

Illustration:

(i) A Muslim man dies leaving behind his father, widow, a brother, a son and a daughter.
The presence of father here would exclude the brother from inheritance. Father will
take one-sixth (1/6th) as sharer, the widow would take one-eight (1/8th) and the
residue will be divided between son and daughter so that daughter takes half of what
son takes.

MOTHER:

Mother always inherits the property of the deceased. The mother’s share varies considerably
depending upon the presence or absence of other heirs of the deceased 7. The mother takes 1/3
where there are no children and 1/6 when there are children.

Illustration:

(i) A Muslim woman dies leaving behind a mother and two sons. The mother will take
one-sixth (1/6th) and the rest of five-sixth (5/6th) will be taken by the sons as
residuaries, which they will divide equally between them.

TRUE GRANDMOTHER AND TRUE GRANDFATHER HHS:

7
Poonam Pradhan Saxena, Kusum & Poonam Pradhan Saxena - Family Law, LexisNexis India.
A true grandfather is a male ancestor between whom and the intestate no female intervenes. 8 a
true grandfather can inherit only in absence of the father or a nearer true grandfather. In the
presence of child or the child of son, true grandfather inherits 1/6 of the property.

A true grandmother is a female ancestor, between whom and the intestate no false grandfather
intervenes.9 True grandmother inherits a fixed 1/6 from property.

Where two true grandmothers are present, they collectively take onesixth (1/6th) and divide it
equally amongst them.

Illustration:

(i) A Muslim man, dies and is survived by his father’s father FF, and father’s mother
FM. His father had predeceased him.

FULL SISTER AND CONSANGUINE SISTER:

The full sister is not a primary heir; she is excluded by son, son’s son hls, and, and father and or
true grandfather. A full sister takes half share in the property when she is alone and if there are
more than one, they together take 2/3rd. She inherits this share as a sharer only in absence of a
child, child of a son, father, true grandfather or a full brother10.

The consanguine sister is excluded by a full brother or two full sisters, and by all the four
relations who excluded a full sister. Where there is only one full sister and she inherits as a
sharer, the consanguine sister (whether one or more) would not be excluded in her presence but
will take one-sixth (1/6th) (alone or collectively as the case may be) provided she is otherwise
eligible to inherit.

UTERINE BROTHER AND UTERINE SISTER:

Uterine brother and uterine sister are not a primary heir, they are excluded by child or child of
son, father or true grandfather. The uterine brother or sister is not excluded by full brother or
sister. The share of one is one-sixth (1/6th) and if more than one is present, then they together
take one-sixth (1/3rd).

8
Poonam Pradhan Saxena, Kusum & Poonam Pradhan Saxena - Family Law, LexisNexis India.
9
Poonam Pradhan Saxena, Kusum & Poonam Pradhan Saxena - Family Law, LexisNexis India.
10
Poonam Pradhan Saxena, Kusum & Poonam Pradhan Saxena - Family Law, LexisNexis India.
Illustration:

(i) A Muslim man A dies and is survived by his mother M, two full sisters Si 1 and Si 2
and a uterine brother UBr. Both the sisters would take two-third (2/3rd) collectively
and would get one-third (1/3rd) each; their presence will restrict the share of the
mother to one-sixth (1/6th), and UBr would take one-sixth (1/6th) of the property.
The final shares will be:
M = 1/6, Si 1 = 1/3, Si 2 = 1/3, UBr = 1/6

AUL (INCREASE):

Fractional shares are allotted to the Quranic heirs. There is possibility sometimes the fraction
taken together may be more than unity. This anomaly arises only where either daughter’s class
(D, SD) or sister’s class (real sister or consanguine sister) is present. In their absence no such
anomaly can ever arise. In such cases, the share of each Sharer is proportionately diminished by
reducing the fractional share to a common denominator, and increasing the denominator so as to
make it equal to the sum of the numerators.

RESIDUARIES:

The second category is called asabat, a term which may be rendered as near male agnates.
Certain females who are sharers can also inherit as residuaries in some cases. After the sharers
claim is satisfied, left is taken by the residuaries. The rights of residuaries are recognised by the
Holy Quran (by implication) and by the traditions of the prophet (PBUH) in very specific
terms.11

Ibn Abbas reported the Apostle of Allah (PBUH) as saying: "Divide the property among those
whose shares have been prescribed in the Book of Allah, and what remains from the prescribed
shares goes to the nearest male heirs.

Robertson Smith shows that the right of inheritance lay with the family as a whole; and when
there were no near heirs the estate was taken by those male relations who were called asabats, a
word which primarily means ‘those wo go to battle together and have a common blood-fued’. 12

11
Mulla, Mulla: Principles of Mahomedan Law, lexisnexis India, Gurgaon ( 20 edition)
12
Kinship, 85, Tyabji 705 (13).
The shares of residuaries are not fixed and its quantum is dependent upon the residue left in each
case.

Sirajiyah classified the agnatic heirs entitled to succeed as follows:

Group I: agnates in their own right

Group II: agnates in the right of another

Group III: agnates with another.

The first group is the largest and most important class; this group comprises all male agnates.
The heirs mentioned in this group were also most important in the pre-Islamic law and these
heirs retain their supremacy in the Hanafi law.

The Second group contains four specified female agnates when they co-exist with male agnates
when they co-exist with male relatives of the same degree:

(a) Daughter with son;

(b) Son’s daughter hls with equal son’s son hls;
(c) Full sister with full brother; and
(d) Consanguine sister with consanguine brother.

In second group every female agnate co-exist equal male agnate.

In third group, when full sister and consanguine sister inherits with daughters and son’s daughter.

Classification of male agnatic heirs: (i) descendants (ii) ascendants (iii) descendants of father (iv)
descendants of true grandfather hhs.

Illustration:

(i) A Muslim male die leaving behind a son, a daughter and the widow. Here widow is a
sharer, and in the first place she would be given one-eighth (1/8th) share. The
daughter in presence of the son will take as a residuary. 7/8th would be so divided
that the son takes a double portion than the daughter.

DISTANT KINDRED:
According to Sirjiyah, ‘A distant kindred is every relation who is neither a sharer nor a residuary
heir.’ The turn of distant kindred to inherit comes only when none of the sharers (except the
surviving spouse) or the residuaries is present.13 If the only sharer be a husband or wife, and there
be no relation belonging to the class of Residuaries, the husband or wife will take his or her full
share, and the remainder of the estate will be divided among Distant Kindred.14

In St Akbar Ali v. Smt. Lokman 15, it was held that the residuary has preference over the distant
kindred.

The distant kindred is classified in four classes:

(i) descendants of the deceased other than sharers and residuaries;

(ii) ascendants of the deceased other than sharers and residuaries;
(iii) descendants of parents other than sharers and residuaries;
(iv) descendants of ascendants how highsoever other than residuaries.

The following is a list of Distant Kindred comprised in each of the four classes16: —

I. Descendants of the deceased: —

1.Daughter’s children and their descendants.

2.Children of son’s daughters h.l.s. and their descendants.

II. Ascendants of the deceased: —

1.False grandfathers h.h.s.

2.False grandmothers h.h.s.

III. Descendants of parents: —

1. Full brothers’ daughters and their descendants.

2. Con. brothers’ daughters and their descendants.

IV. Descendants of immediate grandparents (true or false): —

13
Poonam Pradhan Saxena, Kusum & Poonam Pradhan Saxena - Family Law, LexisNexis India.
14
Mulla, Mulla: Principles of Mahomedan Law, lexisnexis India, Gurgaon (20 edition).
15
(1972) 2 C.W.R. 1969
16
Mulla, Mulla: Principles of Mahomedan Law, lexisnexis India, Gurgaon (20 edition).
1. Full pat. uncles’ daughters and their descendants.

2. Con. pat. uncles’ daughters and their descendants.

COMPARISON BETWEEN SUNNI AND SHIA INHERITANCE LAW:

1. In Sunni law, legal heirs are divided into three classes, i.e. the sharers, the residuaries and
the distant kindred; while Shia law recognize only two classes, i.e. the sharers and the
residuaries.
2. Sunni Law distinguish between paternal and maternal grandfather into true and false
grandfather. No such distinction is made in the Shia Law. In Shia law both paternal and
maternal grandfather is placed in the same class.
3. The rule propounded by Sunni law that the nearest in degree will exclude those who are
linked to a deceased by more remote relations is shared by Shia law of inheritance. 17 But
the implications of this rule are quite different in the both systems.
4. In Sunni law, spouses do not benefit under the principle of Radd/return in the first place,
i.e. in presence of other sharers. The same is the rule under Shia law18.

CONCLUSION:

Islam introduced dramatic changes in the pre-Islamic customs regarding succession; these
changes were largely to the benefit of female relatives, who generally had no place in the pre-
Islamic scheme of inheritance.

In Sunni law, the diverse set of relation can inherit the property. It is shared between spouse,
parents, children of the deceased. Islam has granted the right to a woman to inherit the property.
The Sunni Law of inheritance provides an extensive distributive scheme for a wide circle of
family members. According to the Qur'an, inheritance rights are awarded proportionately to
certain familial relations, who were totally excluded under the earlier customary tribal system.

17
Al Sirajiyyah or The Mahommedan Law of Inheritance as Translated by William Jones (Edited by Almaric
Rumsey) (Premier Book House, Lahore 1977) p.27. 16 Carroll, The Ithna Ashari Law of Intestate Succession 88
18
Purohit, The Principles of Mohammedan Law, p.541
tem. The defining systematic feature of Sunni inheritance law is the residuary entitlement of the
'asaba or male agnatic blood relatives of the deceased.

BIBLIOGRAPHY:

1. A.A.A. FAYZEE, Outlines of Muhammadan Law, Oxford University Press, New Delhi
(4th edn., 1974).
2. Purohit, The Principles of Mohammedan Law.
3. Mulla, Mulla: Principles of Mahomedan Law, lexisnexis India, Gurgaon (20 edition).
4. Poonam Pradhan Saxena, Kusum & Poonam Pradhan Saxena - Family Law, LexisNexis India.