TOA

Meaning: Inheritance means the

money or property which a person
gets legally upon the death of the
previous holder. Thus to inherit
means to receive (money, property,
or a title) as an heir (the one who is
going to receive the property) at the
death of the previous holder. For e.g.
a son inherits his father's property
upon the death of his father.

Muslim Law of inheritance: The

Muslim law of inheritance has always
been admired for its completeness as
well as 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 or
whom the estate of the deceased
should devolved by universal
succession, but for adjusting in the
competitive claims of all the nearest
relations

Customary principles of
succession :
i) nearest male agnates succeeded to
the entire estate of the deceased
ii) females and cognates were
excluded
iii) descendants were preferred to
descendants, and descendants to
collaterals
iv) where agnates were equally
distant to the deceased, they
together shared the estate per capita
Improvements introduced by Islam
i) husband and wife being equal are
entitled to inherit each other.
ii) females and cognates were made
competent to inherit
iii) parents and descendants were
given the right to inherit even when
there were male descendants
iv) As a general rule, a female was
given half of the share of a male this
is because of a lesser responsibilities
and obligation in comparison with
males. Since male has the complete
financial obligation of maintenance of
his wives and children as well as his
obligation of paying dower on
marriage.
There is no distinction in the Muslim
law
between movable and immovable
property or between ancestral or
self-acquired property. There is no
such thing as a Joint Muslim family
nor does the law recognize (anything)
in common [with] a Muslim family
birth right is not recognized and the
right of an heir apparent or
presumptive comes into existence for
the first time [up]on the death of the
ancestor to which he would succeed.

According to the Sunni law, the

expectant right of an heir-apparent
cannot pass by succession to his
heir, nor can it pass by bequest to a
legatee under his Will, nor can it be
the subject of transfer of release.

Obstacles to succession
There are certain impediments to
succession:
(1) Slavery, because a slave has no
right to property. But since slavery
has been abolished by Act V of 1843
slavery as a ground of disability is not
not of any importance.
(2) Homicide, a person killing another
does not inherit from the latter.
According to Suni law, a person who
causes the death of another either
intentionally or accidentally cannot
succeed to the latter. According to
shia law, however homicide, to be an
impediment to inheritance must be
intentional and not accident
(3) Difference of religion. But since
the passing of the freedom of religion
act 1850 conversion has ceased to
be an impediment now a Muslim
does not lose his right of inheritance
by relinquishing his religion.
(4) Illegitimacy, that is an illegitimate
child is not entitled to inherit at all
according to the Shia law. But can
inherit from the mother and her
relations in the absence of legitimate
issue, but, can, in no case inherit
from the father or his relations
according to the Sunni law

Now under the Hanafi law there are

three classes of shares as follows:
i) Sharers (whose shares have been
mentioned in the Quran)
ii) Residuaries (if there is no sharers
or if there is something left after
giving them, the inheritance devolves
upon residuaries)
iii) Distant kindred (those relations by
blood who are neither sharers nor
residuaries)

The first step in the distribution of the

estate of deceased Muslim after
payment of his funeral expenses,
debts and legacies (not exceeding
one third of the estate after deducting
the former), is to allot their respective
shares to such of the relations as
belong to the class of the sharers. If
there are no sharers the residuaries
will succeed to the whole of the
inheritance. If there are neither
sharers nor residuaries, the
inheritance will be divided among
such of the distant kindred as are
entitled to succeed thereto.

1. Who are the Sharers?

The Sharers are 12 in number and

are as follows:
(1) Husband,
(2) Wife,
(3) Daughter,
(4) Daughter of a son (or son's son or
son's son and so on),
(5) Father,
(6) Paternal Grandfather,
(7) Mother,
(8) Grandmother on the male line,
(9) Full
sister
(10) Consanguine sister
(11) Uterine sister, and
(12) Uterine brother.

The share taken by each sharer will

vary in certain conditions. For
instance, a
wife takes 1/4th of share in a case
where the couple is without lineal
descendants, and a one-eighth share
otherwise. A husband (in the case of
succession to the wife's estate) takes
a half share in a case where the
couple is without lineal descendants,
and a one-fourth share otherwise. A
sole daughter
takes a half share. Where the
deceased has left behind more than
one daughter,
all daughters jointly take two-thirds.
If the deceased had left behind
son(s) and daughter(s), then, the
daughters cease
to be sharers and become
residuaries instead, with the residue
being so
distributed as to ensure that each son
gets double of what each daughter
gets.
Non-Testamentary and Testamentary
succession under Muslim law:
In Non-testamentary succession, the
Muslim Personal Law (Shariat)
Application
Act, 1937 gets applied. On the other
hand, in case of a person who dies
testate i.e. one who has created his
will before death, the inheritance is
governed under the
relevant Muslim Shariat Law as
applicable to the Shias and the
Sunnis.
In cases where the subject matter of
property is an immovable property,
situated
in the state of West Bengal, Chennai
and Bombay, the Muslims shall be
bound by
the Indian Succession Act, 1925.
This exception is only for the
purposes of
testamentary succession.

2. Residuaries (Agnatic heirs)

Agnatic heirs or residuaries come
into the picture only when after
dividing the heritable estate between
the Quranic heirs, there is still some
estate left. This residue estate goes
to the residuaries. All the residuaries
are related to the deceased through
males only. The residuaries are
further divided into the following
sub-categories:

Residuaries in their own rights

This class involves the agnatic male
relations of the deceased. No female
is included in this line of relationship.
Residuaries in their own rights is
divided into: Offspring of the
deceased, that is the son of the
deceased or the male lineal
descendants.
The root of the deceased, which is
the father or the grandfather of the
deceased, how high so ever.
Offspring of the father, that is the full
brothers, consanguine brothers and
their male lineage. Offspring of the
true grandfather, how high so ever.

Residuaries in another’s rights

Those females who become
residuaries, only when they coexist
along with certain males fall under
this category. This means that the
females become residuaries when
there exist males on the same
degree, or of a lower degree who
would receive such share. These are:

i) Daughters with sons

ii) Son’s daughters with a son’s son
or a male descendant
iii) Full sister with the full brother
iv) Consanguine sister with her
brother
Residuaries together with another

There are only two residuaries

together with another:
i) Full sisters, with the daughters or
son’s daughters
ii) Consanguine sisters, with the
daughters or son’s daughters

Birthright:
Inheritance of property in Muslim law
comes only after the death of a
person, any
child born into a Muslim family does
not get his right to property on his
birth. If an heir lives even after the
death of the ancestor, he becomes a
legal heir and is
therefore entitled to a share in the
property. However, if the apparent
heir does not
survive his ancestor, then no such
right of inheritance or share in the
property
shall exist.

Distribution of the Property:

Under the Muslim law, distribution of
property can be made in two ways –
per
capita or per strip distribution.
The per capita distribution method is
majorly used in the Sunni law.
According to
this method, the estate left over by
the ancestors gets equally distributed
among
the heirs. Therefore, the share of
each person depends on the number
of heirs.
The per strip distribution method is
recognised in the Shia law. According
to this
method of property inheritance, the
property gets distributed among the
heirs
according to the strip they belong to.
Hence the quantum of their
inheritance also
depends upon the branch and the
number of persons that belong to the
branch.

Rights of females:
Muslim does not create any
distinction between the rights of men
and women. On
the death of their ancestor, nothing
can prevent both girl and boy child to
become
the legal heirs of inheritable property.
However, it is generally found that the
quantum of the share of a female heir
is half of that of the male heirs. The
reason
behind this is that under the Muslim
law a female shall upon marriage
receive
mehr and maintenance from her
husband whereas males will have
only the
property of the ancestors for
inheritance. Also, males have the
duty of maintaining
their wife and children.
Widow’s right to succession:
Under Muslim law, no widow is
excluded from the succession. A
childless Muslim
widow is entitled to one-fourth of the
property of the deceased husband,
after
meeting his funeral and legal
expenses and debts. However, a
widow who has
children or grandchildren is entitled to
one-eighth of the deceased
husband's
property. If a Muslim man marries
during an illness and subsequently
dies of that
medical condition without brief
recovery or consummating the
marriage, his widow
has no right of inheritance. But if her
ailing husband divorces her and
afterwards,
he dies from that illness, the widow's
right to a share of inheritance
continues until
she remarries.

A Child in the Womb:

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

Escheat:
Where a deceased Muslim has no
legal heir under Muslim law, his
properties are
inherited by Government through the
process of escheat.

Marriage under the Special

Marriage Act, 1954:
Where a Muslim contracts his
marriage under the Special Marriage
Act, 1954, he
ceases to be a Muslim for purposes
of inheritance. Accordingly, after the
death of
such a Muslim his (or her) properties
do not devolve under Muslim law of
inheritance. The inheritance of the
properties of such Muslims is
governed by the
provisions of the Indian Succession
Act, 1925 and Muslim law of
inheritance is not
applicable.

Division of Shares

The shares of the sharers

1. Father: gets 1/6th when the
deceased leaves a son or son's son
or any other male line descendant.
2. Father's father or any other lineal
male ascendant gets the share of the
father i.e.1/6th.
3. Uterine brother: When only one,
and no child or the child of a son,
father or true grandfather......
1/6th. When two or more and no child
or the child of a son or father ortrue
grandfather ...... 1/3rd.
4. Husband:
(1) When the deceased leaves a
child or the child of a son howsoever
low......1/4th.
(2) Without them ...... 1/2 half.
5. Widow:
(1) When the deceased has left no
child or the child of a son -1/4th
When there is no child or the child of
a son-1/8th
6. Daughter:
(1) When only one and no son so as
to render a residuary - 1/2.
(2) When two or more-2/3rd
7. Sons: (1) When only one and no
child or sons daughter : son or other
male lineal descendant - 1/2.
(2) When two or more and no child or
son's son or other male lineal
descendant-2/3.
(3) When co-existing with one
daughter and no son or son's son or
other male lineal descendant-1/6.
When there are two daughters, the
son's daughters are excluded unless
there happens to be with them
a lineal male descendant of the same
or lower degree. The son's daughters
or the daughters of any
lineal male descendant are excluded
by a son or by a lineal male
descendant nearer in degree than
themselves.
8. Mother:
(1) When co-existing with a child of
the propositus [the person
immediately concerned] or a child of
his or her son, or two or more
brothers and sisters whether
consanguine or uterine-1/6.
(2) When not-1/3.
9. The grandmother - However high
when not excluded by a nearer true
female ancestor-1/6.
10. Full sisters -
(I) When only one and no son or
son's son, true grandfather, daughter,
son's daughter or brother-1/2.
(2) When two or more and no such
excluders-2/3.
11. Consanguine sisters --
(1) When only one and no excluder
as above - 1/2.
(2) When one, and co-existing with
one fullsister-1/6.
(3) When two or more and no such
excluder-1/3.
12. Uterine sisters - Get the same
share as uterine brothers - 1/6.
All these shares are specified in the
Quran. If it be found on assigning
respective shares of the sharers
that total of the shares exceeds unity,
the share of each sharer is
proportionally diminished by
reducing the fractional shares to a
common denominator and increasing
the denominator so as to
make it equal to the sum of
numerators.

Asabah or Residuaries
This class of heirs is called asaba or
residuaries because they take the
residue after such of the sharers
as are not excluded have been
satisfied. They are divided into three
classes:

(1) Residuaries in their own right;

(2) Residuaries in another’s right, and
(3) Residuaries together with another.
Residuaries in their own right
To this class belong all (the) male
relations in the chain of whole
relationship, no female enters. They
are divided into four subclasses:
(1) Parts of the deceased, i.e. his
sons and grandsons howsoeverlow.
(2) His roots i.e. the ascendants, his
father and true grandfather, how high
so ever.
(3) The offspring of his father viz. full
brothers and consanguine brothers
and their lineal male
descendants.
(4) Parts or offspring of the true
grandfather, how high so ever, i.e.,
lineal male descendants, however
remote, of lineal male ascendants,
however remote.
Receiving another's rights
Residuaries in another's right are
those females who as sharers are
entitled to one-half or two-thirds
and who become residuaries if they
co-exist with their brothers. For
example, if the heirs of a deceased
person are his widow, brother and
sister, the widow will get one-fourth,
and of the remaining three-fourths
the brother will get two portions and
the sister one portion as residuaries.
Residuary together with another is a
female heir who becomes residuary
because of her co-existing with
another female heir, for instance,
where there is a sister with a
daughter.
If there be no residuary, the residue
returns to the sharers by
consanguinity in proportion to their
shares.

Distant kindred
The next class of heirs is known as
Dhauil-arham or distant kindred.
They include the relations who are
neither sharer not residuaries; they
inherit only if there are no sharers or
residuaries. Shafi'is and
Malikis do not treat them as heirs at
all. The distant kindred are divided
into foursubclasses:
(1) The offspring of the deceased viz
(a) The children of daughters and
their descendants
(b) The children of son's daughters
and their descendants howsoever
low.

(2) The root of the deceased or his

ascendants
(a) Male ascendants however
remote, in whose line of relations to
the deceased there occurs female
and who are therefore called false
grandfathers. e. g. [a] deceased's
mother's father [or a] father's
mother's father.
(b) Female ancestors technically
called false grandmothers.
(3) The offspring of his parents viz.
the daughters of full brothers and of
full brother's sons, sister's
children.
(4) The offspring of grandparents and
other ascendants however remote.
(a) daughter of half paternal uncles
by the father.
(b) Paternal aunts, full consanguine
or uterine and their children.
(c) Daughters of full paternal uncles
and theirsons.
(d) Maternal uncles and aunts and
their children.
(e) Paternal uncles by the mother.
The general order of succession is
according to their classification, the
first class occupying [the] first
and so on.
Among the individuals of the various
classes, succession is regulated by
proximity to the deceased,
the nearer in degree always
excluding the more remote.

Exclusion
In order to regulate the number of
relations who might inherit together,
the doctrine of hujub or exclusion is
applied. The son, father, husband,
daughter, mother and the wife are
never totally excluded. Exclusion is
based on two principles.
(1) A person who is related to the
deceased through another is
excluded by the latter, for example,
the father excludes the grandfather,
brother and sister in the sun exclude
the grandson and this principle is
extended to the residuaries so as to
give preference to the proximity of
degree, for instance, a son
excludes another son's son.
Secondly, the closest in blood
excludes the others. A relation of full
blood always inherits in preference to
a relation by the father only. Thus a
brother excludes a consanguine
brother or sister. There is an
exception to the first rule, namely that
the mother does not exclude brothers
and sisters and the second rule is
subject to the exception that uterine
relations are not excluded on that
ground.