MODULE IV

Instruction:

1. Module IV is the subject of studies for two weeks. Read carefully. Understand
profoundly. Memorize the substance of the law. Then repeat until the
substance of the law is deeply imprinted in your mind and heart.
2. Answer all the problems from your heart at the end of the module within
two weeks.
3. Write your hand-written answers at a separate booklet or notebook.
4. Submit your answer-booklet at the Dean’s Office, College of law at the end
of two weeks.

The Inheritance of the Sharers

Article 110 of the Muslim Code provides that the following persons will be
entitled to the inheritance as sharer: (a) The husband, (b) The wife, (c) The father,
(d) The mother, (e) The grandfather, (f) The grandmother, (g) The daughter, (h) The
son’s daughter in the direct line, (i) The full sister, (j) The consanguine sister, (k) The
uterine sister, and (l) The uterine brother.

(a) The shares of the surviving husband. –

The surviving husband will inherit in two situations: first, if the

decedent left no child nor a child of a decedent’s son, the husband is entitled to
one-half of the estate; second, if he is survived together with a child or a child of a
decedent’s son, he is entitled to one-fourth of the estate.13 This is in accordance
with the ayah of the Holy Qur’an to the effect: “In what your wives leave, your
share is a half, if they leave no child; but if they leave a child you get a fourth; after
payment of legacies and debts . . . “14

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 (b) The shares of the surviving wife. –

The surviving wife will inherit in two situations: first, if the decedent
left no child nor a child of a decedent’s son, the wife is entitled to one-fourth of the
estate; second, if she is survived together with a child or a child of a decedent’s son,
she is entitled to one-eight of the estate.15 This is in accordance with the ayah of
the Holy Qur’an to the effect: “. . . In what you leave , their share is a fourth, if you
leave no child; but if you leave a child, they get an eight; after payment of legacies
and debts . . .”16

(c) The shares of the father. –

When the father survives with the son or the son’s son of the
decedent, however distant in degree, he is entitled to one-sixth of the estate. When
he survives with the daughter or the son’s daughter of the decedent, he is entitled
to one-sixth of the estate without prejudice to his inheritance as residuary heir. 17
This is in accordance with the ayah of the Holy Qur’an to the effect: “For parents,
a sixth share of the inheritance to each, if the deceased left children; if no children,
and the parents are the only heirs, the mother has a third . . .” 18

(d) The shares of the mother. -

The surviving mother will inherit in four situations: first, when the
only heirs are the father and the mother, the mother will inherit one-third of the
estate;19 second, when she survives with only one brother or sister, she will inherit
one-third of the estate;20 third, when she survives with a child or a son’s child, or
with two or more brothers or sisters, she will inherit one-sixth of the estate;21 and
fourth, when the only heirs are the mother, father, and a surviving spouse, the
mother will inherit one-third of the residue.22 The last situation is based and in
accordance with the famous “Umariyyatan cases” in Islamic jurisprudence.23 This is
in accordance with the ayah of the Holy Qur’an to the effect: “For parents, a sixth
share of the inheritance to each, if the deceased left children; if no children, and

2
the parents are the only heirs, the mother has a third; if the deceased left brothers
(or sisters), the mother has a sixth . . .”24

(e) The shares of the true grandfather. –

The true grandfather refers to grandfather on the father’s side as

the father’s father, how high so ever. 25 It is also defined as “those between whom
and the deceased no female intervenes.”26 In other words, in the line of ascent, the
chain of ancestors between them and the deceased is connected by all male
ancestors. On the other hand, when the chain of ancestors between them and the
deceased is intervened by a female ancestor, such grandfather is called false
grandfather. It is of importance to distinguish between the true grandfather from
the false grandfather because the true grandfather is a sharer and a residuary heir
while the false grandfather is a distant kindred. Therefore, the false grandfather
can only inherit in the absence of sharers and residuary heirs.

A graph of ancestors within third degree is provided infra to show

the distinction between the true grandfather from the false grandfather: those
grandfathers with a check mark (/) are true grandfathers; while those grandfathers
with an eks mark (X) are false grandfathers:

F(/) M F(X) M F(X) M F(X) M

_____ _____ _____ _____

F(/) M F(X) M
___________ ___________

F M

_______________________

Decedent

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 In the above graph, there are only two true grandfathers out of the
six grandfathers: the father’s father and the father’s father’s father. They are only
found in one line of ascent out of the four lines of grandfather’s ascent. They are
the direct male ancestors of the decedent.

All the other four grandfathers out of the six are false grandfathers
because of the intervention of female ancestor in their line of ascent. The father’s
mother’s father is a false grandfather because of the intervention of the father’s
mother in the line of ancestors. All the grandfathers on the mother’s side are false
grandfathers because of the intervention of female ancestors in their line of ascent:
the intervention of the mother on the first line; and the intervention of the mother
and the mother’s mother on the second line of ascent.

In the absence of the father, the true grandfather, as sharer, will

inherit in two situations: first, when he survives with the son or son’s son, how low
so ever, he is entitled to one-sixth of the estate; second, when he survives with any
sharer other than the brothers or sisters, he will inherit one-sixth of the estate
without prejudice to his right as residuary heir. 27

The above law is in accordance with the following hadith: “ ‘Imran

bin Husain came to the Prophet (may peace be upon him) and said: my son’s son
died; what do I received from his estate? He replied: you receive a sixth. When he
turned away, he called him and said: The other sixth is an allowance (beyond what
is due).”28

Presumably, in the above hadith, the grandson had left two

daughters and a true grandfather. Thus, the two daughters inherit two-thirds of the
estate and the true grandfather inherits the one-sixth as a sharer and the other
one-sixth as a residuary heir.29

Another hadith: “Qatadah said: The minimum share given to the

grandfather was a sixth.30

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 (f) The shares of the true grandmother. –

Article 116 of the Muslim Code provides: “The paternal

grandmother succeeding in default of the mother, father or intermediate
grandfather of the decedent shall be entitled, as sharer, to one-sixth of the
hereditary estate.”

The above provision of law provides the share in the inheritance of

one line of grandmother only which is the paternal grandmother. It does not
provide the share in the inheritance of the maternal grandmother. In fact, under
the Muslim law, the maternal grandmother has a stronger right over the
inheritance than the paternal grandmother.

Nevertheless, the above inadequate provision of the law may be

supplemented by applying the Applicability Clause, Article 187 of the Muslim Code.
By virtue thereof, the Muslim law has to be applied in this subject matter in
suppletory manner. Accordingly, we will explain here the shares of the true
grandmother according to the Muslim law.

A true grandmother may be defined as “those between whom and

the deceased no false grandfather intervens.”31 In other words, a true grandmother
is any female ancestor on both paternal and maternal lines between her and the
deceased no false grandfather intervenes.

For illustration, a graph of ancestors within the third degree is

provided infra to show the distinction between the true grandmother from false
grandmother: those grandmothers with check mark (/) are true grandmothers;
while those grandmothers with an eks mark (X) are false grandmothers.

In the above graph, there are five true grandmothers out of the six
grandmothers. They are: (1) the direct female ancestors of the mother; (2) the
direct female ancestors of the father; and (3) the direct female ancestors of the
father’s father. Between them and the decedent no false grandfather intervenes.

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 There is only one false grandmother who is the mother’s father’s
mother. She is a false grandmother because of the intervention between her and
the decedent of a false grandfather, who is the mother’s father.

After knowing the true grandmothers, the rules of exclusion has to

be applied in order to determine the true grandmother or true grandmothers who
are entitled to a share. Hence, the rules of exclusion will be explained under the
following headings: (1) Exclusion by the mother; (2) Exclusion by the father; and (3)
Exclusion between grandmothers.

(1) Exclusion by the mother. –

All the Sunni schools of law are unanimous that the true
grandmother can only inherit in the absence of the mother. In other words, the
mother excludes any true grandmother – maternal or paternal grandmother.32

(2) Exclusion by the father. –

All the Sunni schools of law are unanimous that the father does not
exclude any maternal true grandmother.33 However, there are two views regarding
the exclusion by the father of the paternal true grandmother: The Hanbali school
of law maintains that the father does not exclude a paternal true grandmother from
succession. On the contrary, the other three Sunni schools of law hold that the
father excludes a paternal true grandmother. Accordingly, a paternal true
grandmother, how high so ever, is excluded by the father or the father’s father,
how high so ever, through whom she is connected with the decedent.34

The latter view will be given effect under the Muslim Code because
it is in accordance with Article 123 (a) thereof. It provides: “In the same line, the
relative nearest in degree excludes the more remote.” This is also in accordance
with Article 6 of the Muslim Code when it provides: “Should there be any conflict
among the orthodox (Sunni) Muslim schools of law (Madhahib), that which is in
consonance with the constitution of the Philippines, this Code, public order, public
policy and public interest shall be given effect.”
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 (3) Exclusion among true grandmothers. –

Under this subject matter, there are three situations:

First, the exclusion among true grandmothers in the same line like
the following: (1) among mother’s mother, how high so ever; (2) among father’s
mother’s mother, how high so ever; and (3) among father’s father’s mother’s
mother, how high so ever. In this situation, all the Sunni schools of law are
unanimous that the nearer in degree excludes the more remote. 35

Second, the exclusion among paternal true grandmothers in

different lines like the following: (1) father’s mother’s mother, how high so ever;
and (2) father’s father’s mother’s mother, how high so ever. In this situation, the
nearer in degree excludes the more remote.36

Finally, the exclusion among maternal true grandmothers and

paternal true grandmothers, there are two views:

First, the Hanafi and Hanbali schools of law treat all true
grandmothers as a single group, regardless of paternal nor maternal, and applied
the rule that the nearer in degree excludes the more remote.

Second, the Maliki and Shafi’I schools of law treat the paternal true
grandmothers and the maternal true grandmothers as two groups. The nearer
maternal true grandmother excludes the more remote paternal true grandmothers
but the nearer paternal true grandmother does not exclude the more remote
maternal true grandmother.37

Between the above two views, the first view will be given effect
under the Muslim Code because it is in consonance with the Constitution of the
Republic of the Philippines, the Civil Code of the Philippines, and the Muslim Code.
The Constitution of the Republic of the Philippines enjoins equality between men
and women. It provides that: “The State recognizes the role of women in nation-
building, and shall ensure the fundamental equality before the law of women and
men.”38

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 Likewise, the Civil Code of the Philippines makes no difference
between male and female in their successional rights. The Muslim Code provides
that: “In the same line, the relative nearest in degree excludes the more remote.” 39

The selection of the first view to be given effect under the Muslim
Code is in accordance with Article 6 thereof when it provides: “Should there be any
conflict among the orthodox (Sunni) Muslim schools of law (Madhahib), that which
is in consonance with the Constitution of the Philippines, this Code, public order,
public policy and public interest shall be given effect.”

After the exclusion among the true grandmothers, the remainder

true grandmother will inherit one-sixth of the inheritance. Two or more true
grandmothers will share equally the one-sixth share. This is based and in
accordance with the following Ahadith:

(1) Qabisah b. Dhuwaib said:

A grandmother came to Abu Bakr asking him
for her share of inheritance. He said: There is
nothing prescribed for you in Allah’s Book, nor
do I know anything for you in the Sunnah of the
Prophet of Allah (may peace be upon him). Go
home till I question the people. He then
question the people, and al-Mugihrah b.
Shu’bah said: I had been present with the
Messenger of Allah (may peace be upon him)
when he gave her a sixth. Abu Bakr said: Is there
anyone with you? Muhammad b. Maslamah
stood and said the same as al-Mughirah b.
Shu’bah had said. So Abu Bakr made it apply to
her. Another grandmother came to ‘Umar b. al-
Khattab asking him for her share of inheritance.
He said: Nothing has been prescribed for you in
Allah’s Book. The decision made before you was
made for a grandmother other than you. I am
not going to add in the shares of inheritance;
but it is that sixth. If there are two of you, it is

8
 shared between you, but which ever of you is
the only one left gets it all.40

(2) Buraidah said: The Prophet (may

peace be upon him) appointed a sixth to a
grandmother if no mother is left to inherit
before her.41

(g) The shares of the daughter. -

In the absence of a son, the daughter will inherit, as sharer, in two

situations: first, if only one daughter, she is entitled to one-half of the estate;
second, if two or more, they will inherit two-thirds of the estate per capita.42 This
is in accordance with the ayah of the Holy Qur’an to the effect: “Allah (thus) directs
you as regards your children’s (inheritance): to the male, a portion equal to that of
two females; if only daughters, two or more, their share is two-thirds of the
inheritance; if only one, her share is a half . . .”43

(h) The shares of the son’s daughter, h. l. s.

The son’s daughter, h. l. s., will inherit, as sharer, in three

situations: first, in the absence of any child and a son’s son of her equal in degree,
she will inherit one-half of the estate; second, if two or more, they will inherit two-
thirds of the estate per capita;44 and third, if she survives with a daughter and no
son’s son of her equal in degree, she will inherit one-sixth of the estate as a
complement of the two-thirds share of the female.45 This law is based and in
accordance with the following ahadith:

When there are no children,

grandchildren through sons have the same
position as children, so that grandsons are like
sons and granddaughters are like daughters.
They inherit as they inherit and they overshadow
as they overshadow . . .46

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 Husail b. Shurahbil al-Awadi said:
Aman came to Abu Musa al-Ash’ari and Salman
b. Rabiah and asked about a case where there
were a daughter, a son’s daughter and a full
sister. They replied: The daughter gets half and
the full sister gets half. The son’s daughter gets
nothing. Go to Ibn Mas’ud and you will find that
he agrees with me. So the man came to him and
informed him about their opinion. He said: I
would then be error and not be one of those
who are rightly guided. But I decided
concerning the matter as the Messenger of
Allah (may peace be upon him) did: the
daughter gets half, and the son’s daughter gets
a share which complete two-thirds (i.e., gets a
sixth), and what remains goes to full sister. 47

(i) The shares of the full sister. –

In the absence of the descendant, father, full brother, the full sister
will inherit, as sharer, in two situations: first, if only one, she will be entitled to one-
half of the estate; second, if two or more, they will inherit two-thirds of the estate
per capita.48 This law is based and in accordance with the Ayah of the Holy Qur’an
to the effect:

They ask thee for a legal decision. Say: Allah

directs (thus) about those who leave no
descendants or ascendants as heir. If it is a man
that dies, leaving a sister but no child, she shall
have half of the inheritance: If (such a deceased
was) a woman, who left no child, her brother takes
her inheritance: If there are two sisters, they shall
have two-thirds of the inheritance (between
them): if there are brothers and sisters, (they
share), the male having twice the share of the
female . . .49

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 (j) The shares of the consanguine sister. –

The consanguine sister is a sister of the decedent on his or her

father side only. They have the same father but not the same mother. The
consanguine sister will inherit, as sharer, in three situations. The first and second
situations: when the decedent leaves neither descendant, father, full brother, full
sister, consanguine brother, the consanguine sister will inherit one-half of the
estate per capita.50 If two or more, they will inherit the two-thirds portion of the
estate. This law is based and in accordance with the ayah of the Holy Qur’an to the
effect:

They ask thee for a legal decision. Say: Allah

directs (thus) about those who leave no
descendants or ascendants as heirs. If it is a man
that dies, leaving a sister but no child, she shall
have half of the inheritance; if (such a deceased
was) a woman, who left no child, her brother
takes her inheritance; if there are two sisters, they
shall have two-thirds of the inheritance (between
them); if there are brothers and sisters, (they
share), the male having twice the share of the
female . . .51

The third situation is when she survives with the full sister. The law
in this situation is not provided under the Muslim Code. However, by virtue of its
Applicability Clause, Art. 187, the Muslim law may be applied in this situation in
suppletory manner.

Under the Muslim law, when the decedent leaves neither

descendant, father, full brother, consanguine brother, but is survived by full sister
and consanguine sister, the full sister will inherit one-half of the estate and the
consanguine sister will inherit one-sixth of the estate to complete the two-thirds
share of the female.52 This is based and in accordance with the following Hadith to
the effect:

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 Malik said: If there are both full-siblings and half-
siblings by the father and there is a male among the full-
siblings, none of the half-siblings by the father have any
inheritance. If there is one or more females in the full-
siblings and there is no male with them, the one full-
sister gets a half, and the half sister by the father gets a
sixth completing the two-thirds . . .53

(k and l) The shares of the uterine brother or sister. –

The uterine brother or sister is a brother or a sister of the decedent

through the mother but not through the father. 54 Article 121 of the Muslim Code
provides that: “The share of a uterine brother or sister shall be one-sixth of the
hereditary estate should there be no surviving decedent (descendants), father,
paternal grandfather, or full brother and sister [sic] of the decedent. Two or more
uterine brothers or sisters shall inherit one-third of the estate per capita.”

In the above provision of law, the inclusion of the “full brother and
sister” among the heirs who exclude the uterine brother or sister is a lapsed in the
provision. It is a deviation from the Ayah of the Holy Qur’an. It is also a deviation
from the consensus of all the Sunni schools of law.

The Ayah of the Holy Qur’an regarding the inheritance of the uterine
brother or sister is to the effect: “. . . . if the man or woman whose inheritance is in
question, has left neither ascendants nor descendants, but has left a brother or a
sister, each one of the two gets a sixth; but if more than two, they share in a third. .
.”55

The brother or the sister mentioned in the above ayah has been
interpreted to mean a uterine brother or sister, i. e., a brother or sister by the same
mother but not by the same father.56

In the above Ayah, it is clear that the only heirs who can exclude the
uterine brother or sister are the “ascendants and descendants.” The ascendants
refers to the male ascendants on the father’s side while the descendants refer to
both male and female descendants. Therefore, the full brother and sister are not
12
among those heirs mentioned in the Ayah who can exclude the uterine brother or
sister.

The consensus of all the Sunni schools of law is that the only heirs
who can exclude the uterine brother or sister are: (1) any male ascendant on the
father’s side; and (2) any descendant heirs – male and female.57 In the preceding
consensus, the full brother and sister are not among those heirs who can exclude
the uterine brother or sister from succession. Therefore, the consensus of all the
Sunni schools of law is exactly the same with the Ayah of the Holy Qur’an.

Nevertheless, to resolve the preceding deviation of Article 121 of

the Muslim Code from its fundamental sources, i.e., the Holy Qur’an, and the
doctrine of the schools of law it originates 58 (the Sunni schools of law), let us apply
the rules of statutory constructions:

Some of the relevant rules used by the Courts in the Philippines are
as follows:

1. Statutes adopted from other jurisdiction must be given the same

construction in those States.
2. In the interpretation of law, officially promulgated in English, the
English text prevails. This is so, with respect to Presidential
Decree 1083, but in case of ambiguity, omission or mistake, the
primary sources of Islamic law may be consulted in Arabic to
explain the text.59

Article 4 of the Muslim Code provides:

1. In the construction and interpretation of this code and other

Muslim laws, the court shall take into consideration the primary
sources of Muslim law.
2. Standard treatises and works on Muslim law and jurisprudence
shall be given persuasive weight in the interpretation of Muslim
law.

By virtue of the above rules of statutory construction used by the

courts in the Philippines as well as the provisions of the Muslim Code, it is therefore

13
clear that Article 121 of the Muslim Code has to be interpreted like its origin from
which it was adopted, i.e., the Holy Qur’an.

Therefore, the only heirs who can exclude the uterine brother or
sister from inheritance are the father, paternal grandfather, and all descendant heirs
– male and female. The uterine brother and/or sister will inherit in two situations:
first, if only one, he or she will inherit one-sixth of the estate; second, if two or more,
they will inherit one-third of the estate per capita.60

Guide in computing the shares of the sharers:

a) Key to abbreviations. –

H – Husband

W- Wife

M – Mother

F – Father

TGM – True Grandmother

TGF – True Grandfather

D – Daughter

SD – Son’s Daughter

GS – Germane Sister (or Full blood Sister)

CS – Consanguine Sister

US – Uterine Sister

UB – Uterine Brother

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 b) Summary of the shares of the sharers and the conditions when
they are entitled to their respective fixed shares in the
inheritance:

1. H – ½ if no child of the decedent ( wife);

- ¼ if there is a child of the decedent (wife).
- Note: child includes child of the decedent’s son, i.e., son’s son or son’s
daughter, h.l.s.
2. W – ¼ if no child of the decedent (husband);
- 1/8 if there is a child of the decedent (husband).
- Note: the same rule at the preceding note.

3. M – 1/3 if the only heirs are the mother and father; (1/3 for the mother, 2/3
for the father);
- 1/3 when she survived with only one brother or sister of the decedent;
- 1/6 when she survived with a child or son’s child; or with two or more
brothers or sisters of the decedent;
- 1/3 of the residue. – when the only heirs are the mother, father and a
surviving spouse, i.e., husband or wife.

4. F- 1/6 when he survived with a son or son’s son of the decedent, h.l.s.;
- 1/6+R – when he survived with a daughter or son’s daughter, h.l.s..

5. TGM – 1/6 subject to the exclusion rule.

6. TGF – 1/6 – no father, but survived with son or son’s son, h.l.s.;

- 1/6+R – no father, but survived with any sharer other than the brothers
or sisters.

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 7. D – ½ - if only one daughter. Condition: no decedent’s son;
- 2/3 if two or more daughters. Condition: the same above.

8. SD- ½ if only one son’s daughter. Conditions: no child of the decedent; no son’s
son of her equal in degree.
- 2/3 if two or more son’s daughters. Condition: the same as above.

9. GS – ½ if only one. Conditions: the decedent leaves no descendant, father,

germane brother.
- 2/3 if two or more. The same condition above.

10. CS – ½ if only one. Conditions: the decedent leaves no descendant, father,

germane brother, germane sister, consanguine brother.
- 2/3 if two or more. The same conditions above.

11. UB and US – 1/6 if only one. Conditions: The decedent leaves no father,
paternal grandfather, descendant – male or female.
- 1/3 if two or more. The same condition above.

c) Doctrine of increase or “Awl” and the doctrine of return or

“Radd”. -

In the distribution of the inheritance to the sharers, it is unavoidable

circumstance which may happen that after giving the shares to the surviving sharers,
the total of all such shares exceed the whole inheritance or it may also happen that
the total shares is less than the whole inheritance and there is no surviving residuary

16
heir. In these cases, problems occurred: In the first case, the problem is that the
whole inheritance is not enough to satisfy the shares of the surviving sharers. In the
second case, the problem is what to do with the residue when there is no residuary
heir. Hence, the doctrine of increase or ‘awl and the doctrine of return or radd are
formulated.

(1) The doctrine of increase or awl. –

To solve the first anomalous case, the Sunni jurists have agreed that
the shares of the surviving sharers have to be reduced proportionately in such shares
equal to the whole inheritance. This is done by increasing the whole inheritance,
which is represented by denominator in the mathematical computation, to make
equal to the total shares of all the surviving sharers, which is represented by
numerator in the mathematical computation. This is simply done by changing the
denominator to a number equal to the numerator, so that the total number of shares
of all the surviving sharers is properly balanced with the whole inheritance. This
formula is called the doctrine of increase or awl.

To illustrate: If the decedent left the following heirs: a husband and

two germane sisters. The husband is entitled to one-half of the estate, the two
germane sisters are entitled to two-thirds of the estate. In this case, the total shares
exceed the whole inheritance.

Let us see its mathematical computation:

Husband - ½ or 3/6

2 full sisters - 2/3 or 4/6

3/6 + 4/6 = 7/6

7 the numerator, is the total shares of all the sharers.

6 the denominator, is the whole inheritance.

In the above computation, the total shares of the sharers exceed the
whole inheritance. For that reason, the whole inheritance which is represented by

17
figure 6 is not enough to satisfy the total shares of the sharers which is represented
by figure 7. Therefore, this is an anomalous case.

Nevertheless, to rectify the problem, we have to apply the doctrine

of increase or ‘awl. This is done by increasing the denominator to a number that
makes it equal to the numerator, or change the denominator to a number equal to
the numerator. By doing so, the shares of the sharers are proportionately reduced
to the total shares equal to the whole inheritance. Therefore, the shares of the heirs
are reduced to the following:

Husband - 3/7

2 full sisters - 4/7

3/7 + 4/7 = 7/7

7 the numerator, is the total shares of all the sharers.

7 the denominator, is the whole inheritance.

The anomalous case is rectified. The whole inheritance is sufficient

to satisfy the shares of the sharers. The Muslim Code adheres to this doctrine.
Hence, Article 129 thereof provides: “If the totality of all the shares assigned to each
of the sharers exceeds the whole inheritance, the shares shall be reduced
proportionately.”

(2) The doctrine of return or radd. –

In the event that the shares of the surviving sharers are less than the
whole inheritance and there is no surviving residuary heir, the Sunni jurists are
divided into three different opinions:

First, the residue will be given to the public treasury (bait al-mal).
This is the view uphold by the Maliki and Shafi’i classical jurists.

Second, the residue will be given to the public treasury on condition

that the public treasury is organized and managed in accordance with the precepts
of Shari’ah. In the event of failure to meet the said condition, the residue will be
18
returned to the sharers except the surviving spouse in proportion to their respective
shares. This is the view uphold by the Maliki and Shafi’i post-classical jurists; and

Third, the residue will be returned to the sharers except the

surviving spouse in proportion to their respective shares. This is the view uphold by
the Hanafi and Hanbali jurists.98

The view that the residue will be returned to the sharers except the
surviving spouse in proportion to their respective shares is called the doctrine of
return or radd. The Muslim Code adheres to the doctrine of return or radd. Article
130 thereof provides:

If, after distributing the portions of the

sharers, a residue is left in the inheritance and there
is no surviving residuary heir, the same shall revert
in its entirety to the lone sharer or to all the sharers
in proportion to their respective shares. However,
the husband or the wife shall not be entitled to any
part of the reverted portion as long as there are
sharers or distant kindred.

In the mathematical computation, the formula of radd is that

decrease the whole inheritance as represented by the denominator to a number
equal to the total shares of all the surviving sharers as represented by the
numerator. In other words, this is done simply by changing the denominator to a
number equal to the numerator. By doing so, the shares of the sharers have
increased in proportion to their respective shares. 99

To illustrate: A decedent left the following heirs: a mother and a

daughter. In this example, the mother will inherit one-sixth of the estate and the
daughter will inherit one-half of the estate, thus:

Mother - 1/6 or 1/6

Daughter - ½ or 3/6

1/6 + 3/6 = 4/6

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 4 the numerator, is the total shares.

6 the denominator, is the whole inheritance.

In this case, the total shares, the numerator, which is represented

by 4 is less than the whole inheritance, the denominator, which is represented by
6. Applying the doctrine of return or radd, decrease the whole inheritance to a
number equal to the total shares. In other words, change the denominator 6 to 4
so that there is perfect balance between the total shares and the whole
inheritance. By doing so, the shares of the surviving sharers are increased in
proportion to their respective shares. Thus, the mother will inherit ¼ and the
daughter will inherit ¾. Adding together: ¼ + ¾ = 4/4. Therefore, the anomalous
case is perfectly rectified.

(3) Application of radd when there is a surviving spouse among the

sharers. –

The surviving spouse is not entitled to a reverted inheritance,

return or radd. To solve the problem: as early as you learn that the problem needs
the application of radd and there is the presence of a surviving spouse in the
sharers, separate the inheritance of the surviving spouse, then, compute the shares
of the other sharers where you can apply the doctrine of radd.

For example: The decedent left the following heirs: wife, mother,
and a daughter. The estate is eight million pesos (₽8,000,000.00). Partition the
estate?

The wife is entitled to 1/8 of the estate; the mother is entitled to

1/6 of the estate; and the daughter is entitled to ½ of the estate. To compute:

1. Assign the respective shares of the sharers in a mathematical

computation of a simple fraction;
2. Due to different denominators, assign a less common
denominator;

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 3. Divide each common denominator by the original denominator
of each share, then multiply by its respective numerator and the
result is the new numerator of each respective share;
4. Sum-up the new numerators having a common denominators,
the result is the total shares and the common denominators is
the total inheritance;
5. The difference between the numerator and the denominator is
the residue left subject of reversion – radd.

W - 1/8 3/24 24 is the less common denominator.

M - 1/6 4/24

D - ½ 12/24

__________

19/24

19 is the sum total of shares, numerator.

24 is the sum total of the inheritance, denominator.

5/24 is the residue left, subject of reversion – radd.

Since the wife is not entitled to a reverted portion of

the estate, give her fixed share in the inheritance, i. e., 1/8 of 8
million, which is 1 million. What left is 7 million to be divided by the
mother and a daughter.

M - 1/6 1/6 ¼

D - ½ 3/6 ¾

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 4/6 4/4 radd is applied at the third
column.

The mother is entitled to ¼ of 7 million or

₽1,750,000.00.

The daughter is entitled to ¾ of 7 million or

₽5,250,000.00.

To sum-up:

W - 1,000,000.00

M - 1,750,000.00

D - 5,250,000.00

--------------------

Total 8,000,000.00

(4) Doctrine of correction. –

When the shares of the group of sharers cannot be

divided equally among the group of sharers, multiply the shares by a
number – called corrective number – in order to increase the number
of shares that can be equally divided by the group of sharers.
Corrective number is a simple fraction in which the numerator and
the denominator are integer, i. e., a whole number. For examples:
3/3; 4/4; 5/5. They are whole number or one (1). Any number
multiply by one (1) is equal to itself.

To illustrate: The decedent is survived by a mother

and three (3) daughters. The mother is entitled to 1/6 and the 3
daughters are entitled to 2/3.

M - 1/6 1/6 1/5

3D - 2/3 4/6 4/5

5/6 5/5
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 6 is the less common denominator at second column
above. Sum-up the numerator is equal to 5/6. There is a residue of
1/6. To return the residue, change the denominator at third column
above to 5, a number equal to the total shares of all the sharers.

4/5, the shares of the 3 daughters, cannot be divided

equally by the 3 daughters. For the 3 daughters to divide equally the
4/5 shares, multiply 4/5 by corrective number, that is the number of
the sharers in a form of a simple fraction. In the given example, the
number of daughters are 3, therefore, the corrective number is 3/3.
3/3 is one (1). Any number multiply by one(1) is equal to itself. Thus,

M - 1/5 X 3/3 = 3/15

3D - 4/5 X 3/3 = 12/15

12/15 can be equally divided by the 3 daughters.

Each of them will get 4/15. Thus, the final shares of the sharers are as
follows:

M - 3/15

D - 4/15

D - 4/15

D - 4/15

15/15

If the estate is 15 million, the mother will get 3

million and each of the 3 daughters will get 4 million.

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Notes:

1. Muslim Code. Art. 111

2. The Holy Qur’an, Surah Al Nisa (4): 12.
3. Muslim Code. Art.112.
4. The Holy Qur’an, Surah Al Nisa (4): 12.
5. Muslim Code, Art. 113.
6. The Holy Qur’an, Surah Al Nisa (4): 11.
7. Ibid.
8. Muslim Code. Art. 114.
9. Ibid.
10. Tanzil-ur-Rahman, op. cit. V. II, p. 490.
11. Coulson, op. cit. p. 45.
12. The Holy Qur’an, Surah Al Nisa (4): 11
13. Coulson, op. cit., p.53.
14. Almaric Rumsy, Moohummudan law of Inheritance. (1981), p. 14.
15. Muslim Code. Art. 115.
16. Sunan Abu Dawud. Vol. II. p. 817.
17. Id. Note 2306.
18. Id. P. 818.
19. Rumsey. op. cit., p. 14.
20. Coulson. Op. cit., p. 60.
21. Id., p. 62.
22. Ibid.
23. Id., p. 61.
24. Ibid.
25. Id., p. 62.
26. 1987 Philippine Constitution. Art. II, Sec. 14.
27. Muslim Code. Art. 123(a).
28. Sunan Abu Dawud. Vol. II, p. 817.
29. Ibid.
30. Muslim Code. Art. 117.
31. The Holy Qur’an. Surah Al Nisa (4): 11.
32. Muslim Code. Art. 116.
33. Muslim Code. Art. 117.
34. Al-Muwatta. P. 200.
35. Sunan Abu Dawud. Vol. II, pp. 815-816.

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 36. Muslim Code. Art. 119.
37. The Holy Qur’an. Surah Al Nisa (4): 176.
38. Muslim Code. Art. 120.
39. The Holy Qur’an. Surah Al Nisa (4): 176.
40. Tanzil-ur-Rahman. Op. cit., Sec. 297, Vol. II, p. 506.
41. Al-Muwatta. P. 202.
42. Tanzil-ur-Rahman. Op. cit., Vol. II. p. 309.
43. The Holy Qur’an. Surah Al Nisa (4): 12.
44. Abdullah Yusuf Ali, op. cit., Note 521, Vol. I, p. 510.
45. Tanzil-ur-Rahman. op. cit., Vol. II, p.510; Jamal N. Nasir. Op. cit., p.
212.
46. Muslim Code. Art. 6(2).
47. Jainal D. Rasul and Ibrahim Ghazali. Commentaries and
Jurisprudence on the Muslim Code of the Philippines. (1984), pp. 68-
69.
48. Muslim Code. Art. 121.
49. The Holy Qur’an. Surah Al Nisa (4): 12.

97. Abdur Rahman I. Doi. Op. cit., pp. 314-316. 98.

Tanzil-ur-Rahman. op. cit., pp. 527-532.
99. Syed Khalid Rashid. Op. cit., pp. 251-252.

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Problems:
1. The decedent is survived by the following heirs: Mother, Son’s daughter, and
a Germane sister. The estate is Five Million Pesos (₱5,000,000.00).

Questions:

a) What are the respective shares of the above heirs?

b) What are the Qur’anic ayah or legal principles as the bases of your answer?
c) Please explain your answer?

2. The decedent is survived by the following heirs: True grandmother,

Consanguine sister, and a Uterine sister. The estate is Five Million Pesos
(₱5,000.000.00).

Questions:

a) What are the respective shares of the above heirs?

b) What are the Qur’anic ayah or legal principles as the bases of your answer?
c) Please explain your answer?

3. The decedent is survived by the following heirs: Wife, Mother, and a Son’s
daughter. The estate is Eight Million Pesos (₱8,000,000.00).

Questions:

a) What are the respective shares of the above heirs?

b) What are the Qur’anic ayah or legal principles as the bases of your answer?
c) Please explain your answer?

4. The decedent is survived by the following heirs: Husband, Mother, Daughter,

and s Germane sister. The estate is Thirteen Million Pesos (₱13,000.000.00).

Questions:

a) What are the respective shares of the above heirs?

b) What are the Qur’anic ayah or legal principles as the bases of your answer?
c) Please explain your answer?

5.The decedent is survived by the following heirs: Husband, Mother, Daughter,

and three Germane sisters. The estate is Thirteen Million Pesos (₱13,000,000.00).
26
Questions:

a) What are the respective shares of the above heirs?

b) Cite Qur’anic ayah or legal principles as the bases of your answer?
c) Please explain your answer?

6.The decedent is survived by the following heirs: Wife, Mother, Daughter,

Uterine sister, and a Uterine brother. The estate is Twenty Seven Million Pesos
(₱27,000,000.00).

Questions:

a) What are the respective shares of the above heirs?

b) Cite Qur’anic ayah or legal principles as the bases of your answer?
c) Please explain your answer?

7.The decedent is survived by the following heirs: Mother, three Daughters. The
estate is Five Million Pesos (₱5,000,000.00).

Questions:

a) What are the respective shares of the above heirs?

b) Cite Qur’anic ayah or legal principles as the bases of your answer?
c) Please explain your answer?

(Good Luck!)

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