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FACULTY OF LAW, JAMIA MILLIA ISLAMIA

TEACHING ASSIGNMENT

LESSON PLAN: INHERITANCE UNDER MUSLIM

LAW.

SUBMITTED TO –
DR. KAHKASHAN Y. DANYAL
FACULTY OF LAW, JAMIA MILLIA ISLAMIA.

SUBMITTED BY-
PRERNA PATHAK
SEMESTER 1V
LL.M (SELF FINANCE)
ROLL NUMBER- 21-MLW-1019.
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LESSON PLAN: MUSLIM LAW OF INHERITANCE.

SUBJECT: FAMILY LAW -I (SEMESTER- IV)
SUBJECT TEACHER- DR. KAHKASHAN Y. DANYAL

DATE DAY TIME DURATION BATCH

19/05/2023 FRIDAY 10:15- 45 MINUTES REGULAR

11:10
AM
19/05/2023 FRIDAY 4:15-5:15 1 HOUR
PM SELF-FINANCE

22/05/2023 MONDAY 4:15-5:15 1 HOUR COMBINED

PM (regular and self-
finance)

I, Prerna Pathak, a student of Semester IV, LL.M (Self Finance), delivered lectures on the
Muslim Law of Inheritance on 19/05/2023 (Friday) and 22/05/2023 (Monday) of the IVth
Semester. Since it is a vast topic, 3 classes were required to have a comprehensive
understanding of the concept. The lectures were a part of my teaching assignment curriculum.
GOAL-
The purpose of teaching the Muslim law of inheritance, also known as Islamic inheritance law,
is to educate individuals about the principles and rules governing the distribution of assets and
wealth among heirs in accordance with Islam. Islamic inheritance law is derived from the
Quran.
By learning and applying the principles of Islamic inheritance law, individuals can navigate
the complexities of estate distribution and contribute to the overall well-being of their families
and communities, while adhering to their religious beliefs.
OBJECTIVE-
1) To make the students understand the General Principle of Muslim Law governing both
Sunni and Shia Law.
2) To make students understand the division of shares among the different classes of heirs
and how the division of shares is affected by the presence or absence of heirs.
3) To help students identify and solve real-life problems with respect to the division of
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shares under Sunni and Shia Law.

4) To help the students understand the difference between Shia and Sunni laws of
inheritance.

Remarks-
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INTRODUCTION
The major difference between the Laws of Succession and Inheritance is that succession is an
umbrella term that includes both testamentary (when the ancestor/ propositus dies leaving
behind a will) and intestate succession (where the ancestor/ propositus dies without a
will). Inheritance is covered under intestate succession.

The Prophet (SWAT) has said-

“Learn the Laws of inheritance and teach them to the people, for they are one-half of the useful
knowledge”

The current laws of inheritance are a combination of Pre-Islamic Customs and the reforms
introduced by the prophet.
The Muslim law of inheritance is a complex, finely balanced, and mathematically precise
system which rests more on the explicit injunctions of the Quran than any other part of
Shariah.
There are certain terms that need to be understood before we proceed any further-
 Agnates- A person is said to be the agnate of another if the two of them are related by
blood entirely or wholly through males.
 Cognates- - A person is said to be the agnate of another if the two of them are related
by blood not entirely through males, a female link intervenes.
 Lineal Ascendants and Descendants- The person who has descended or ascended in
a direct line from the other. For example- man, his father, his father’s father and so
upwards are all linear descendants of the first man.
 Collateral- A person having a common ancestor with the deceased, but who is neither
a descendant nor an ascendant of the deceased, for example, the brother or sister of the
deceased.
 Full Blood- The persons who are related to each other by common parents (both
FATHER and MOTHER). For example, full-blood brother-sister.
 Consanguine (half) brother and sister- The children of the same father but different
mothers.
 Uterine (half) brother and sister- The children of the same mother but different
fathers.
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HISTORY: PRE-ISLAMIC AND POST-ISLAMIC LAW ON INHERITANCE

PRE-ISLAMIC CUSTOMARY LAW-

The Quran did not sweep away the existing customs but made a great number of amendments-
i) The nearest male agnate succeeded the entire estate of the deceased.
ii) Females and Cognates were excluded.
iii) Descendants were preferred over ascendants and ascendants over collaterals.
iv) When agnates were equally distant, they inherited per capita.
POST-ISLAMIC REFORMS INTRODUCED BY ISLAM-
i) Husband and wife were made heirs.
ii) Females and Cognates were made competent to inherit.
iii) Parents and ascendants were given the right to inherit even when there were male
descendants.
iv) As a rule, females were given one-half of the share of the male.
The newly created heirs comprise mainly females and cognates as opposed to the pre-
Islamic times when they were not given anything.

GENERAL PRINCIPLES OF MUSLIM INHERITANCE

 Property- Movable and Immovable not distinguished.
The Muslim Law doesn’t recognize a distinction between movable and immovable
property for the purpose of inheritance. Shia law makes a distinction in case of a
childless widow where she cannot inherit from her husband’s land.
 Ancestral and self-acquired property not distinguished
Unlike Hindu law, the Islamic law of Inheritance does not recognize the concept of
joint family or coparcenaries’ property. Whenever a Muslim dies, his properties will
pass on his heirs in the definite share of which the heir becomes the absolute owner.
Similarly, on the death of such a legal heir, the property owned by him will devolve
among his legal heirs and this same process continues. Unlike Hindu law, there is no
provision for Ancestral or Joint-family property. And there is also not distinction
between Self-acquired or ancestral property.
 No limited interest-
The concept of a limited estate is alien to Muslim law, unlike Hindu law where the
woman holds a limited interest in ancestral property. If a Muslim inherits property, he
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can alienate and use it however he likes.

 No rule of primogeniture
Muslim law does not recognize the law of primogeniture, the oldest son has no special
privileges. The eldest son has no preferential claim in property. Shia law makes a
distinction here where the eldest son is entitled to his fathers’ Quran, sword, wearing
apparel and ring.
 Birthright not recognized
The Islamic inheritance can only be availed upon the death of an ancestor. A person
cannot be an heir of a living person. The right of inheritance, thus, is not a birthright.
Until the death of an ancestor, an heir apparent is a mere spes successionis (chance of
succession).
 Vesting of Interest
Immediately upon the death of the propositus, the heirs are vested with the right of
inheritance. The vesting of interest is not dependent on the actual division of the
property.
 Devolution of separate shares
On death of the ancestor, each heir gets his share in separate form as assigned to him
or her according to the Muslim Law.
 Missing Propositus
The right to inherit the property of a missing propositus would arise on the date on
which he is presumed to have dies and the heirs would be determined on that date and
not on the date on which he disappeared. Presumption of death operates as per Section
108 of the Indian Evidence Act, of 1872.
 Missing heirs
If any of the heir or heirs are missing at the time if the death of the propositus, the
property shall be reserved until he reappears or is proven to be dead. Presumption of
death operates as per Section 108 of the Indian Evidence Act, of 1872.
 Illegitimate Person
Under Sunni Law, an illegitimate child is considered to be the child of the mother only
and therefore, it cannot inherit from the father, and neither can the father inherit from
it. Inheritance rights exist only between the child and its maternal relations.
Under the Shia law, an illegitimate child doesn’t inherit from the mother or father.
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 Child of a woman divorced by lian

This is similar to the rules that apply in the case of an illegitimate child.
 A child in the womb
A child in the womb is considered to be a living person provided that he is born alive.
Hence, a child in the womb can inherit the property of the deceased where his share is
reserved and then, the remaining property is distributed.
Under the Sunni Law, the share of one son or one daughter, whichever is higher, is
reserved. Whereas under Shia law, the share of two sons is reserved.
 Death in Common Calamity
Where more than one person dies in a common calamity and it can’t be proved as to
who dies first, the property of each of them would be inherited by his heirs, and there
would be no mutual right of inheritance between them.

DOCTRINE OF REPRESENTATION
This Doctrine is a well-known principle recognized by the Roman, English and Hindu laws of
inheritance. According to this principle of Representation, the son of a predeceased son
represents his father for the purpose of inheritance. The Islamic law of inheritance does not
recognize this Doctrine apart from Shia law where it is used to determine the quantum of shares.
The doctrine of representation may be explained with the help of the diagram given below.

A has two sons B and C. B has got three sons D, E, F and C has a son G. During the life of A,
his family members are his two sons (B and C), and four grandsons (D, E, F and G).
Unfortunately, B dies before the death of A. Subsequently, when A also dies, the sole surviving
members of the family of A are C and four grandsons, D, E, F and G. Under the doctrine of
representation, D, E and F will represent their pre-deceased father В and would be entitled to
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inherit the properties of A in the same manner as В would have inherited, had he been alive at
the time of A’s death.
Observation: – The doctrine applies where the heirs don’t have birthright in the property but
the right arises at the time of death of the father.

The nonrecognition of the Doctrine of Representation is that the heir (son of a predeceased son
for example) doesn’t get anything and left to the mercy of other heirs to consider him for gift
or a share by will.
In Pakistan, Section 4 of The Muslim Family Laws Ordinance, 1961 has given a right to the
heirs of a pre-deceased son to inherit the share of their father in the property of their
grandfather.

RULES OF TOTAL AND PARTIAL EXCLUSION

Both under Shia and Sunni systems, every person is entitled to inherit, unless there is something
to exclude him. A child in the womb is regarded as a living person provided, he is born alive.

Both the Shia and Sunni systems recognized two types of exclusions:

(1) partial or imperfect exclusion;

(2) total or perfect exclusion.

Partial or imperfect exclusion.

It may come in two ways:
 Exclusion from one share and admission to another.
For example, the daughter in the presence of the son is excluded as a "Sharer and becomes a
'Residuary'.
 Partial reduction of the specific share because of the presence of certain heirs.
For example, the share of a wife is either 14 or 1/8th according to the absence or presence of a
child or child of a son, how low soever.

Total or perfect exclusion.

The term 'total exclusion' applies to cases when although a person, related to the propositus and
otherwise entitled to inherit, is excluded by some 'legal cause". Both in Shia and Sunni systems
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this type of exclusion is based on three principles:

 Principle 1. "Nearer in degree excludes more remote." (eg son excludes son's son;
father excludes grandfather).

 Principle II-"A person who is related to the deceased through another is excluded by
the presence of the latter." (e.g. father excludes brother).

Exception. Mother does not exclude brother or sister.

 Principle III- "Full blood excludes half-blood." (e.g. full sister excludes consanguine
sister).

Exception-Uterine relations are not excluded on this ground,

The most important of total exclusions under Muslim Law is on the following grounds:
(a) Religion-
According to Islamic Law, a non-Muslim cannot inherit from a Muslim. Thus, if a Muslim
converts, he is excluded from inheritance. In India, however, this rule does not apply after
the passing of the Caste Disabilities Removal Act, of 1850. But a Hindu, who is converted
to Islam and dies a Muslim, is governed by Muslim Law, and after his death, his Hindu
relatives could not claim a share in inheritance by virtue of the Caste Disabilities Removal
Act
(b) Homicide
On this point, there is a slight difference of opinion between Shias and Sunnis. Sunnis say
that one who causes the death of another either intentionally or unintentionally, cannot
inherit from the deceased.
Shias say that the homicide must be intentional, but the absence of intention should be
clearly proved.
c) Slavery.
Both under the Shia and Sunni Laws, the status of slavery is a bar to succession. This branch
of Muslim Law, however, is obsolete in India, as the Act 5 of 1843 has abolished the system
of slavery.
d) Illegitimacy.
A bastard, in Hanafi Law, cannot inherit from the father, he could, however, do so from the
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side of the mother.

In Shia Law, on the other hand, illegitimacy acts as a factor for total exclusion, and a bastard
is not allowed to inherit either from their mother or father. A distinction is, however, drawn
between a child of fornication and a child whose parentage has been disallowed by the
father, that is, a child of imprecation.
In the case of fornication, the child is excluded from inheritance; while a child of
imprecation is allowed to inherit from the side of the mother. Sunni Law does not recognize
this distinction. The child of fornication and imprecation are both regarded as illegitimate
and inherited from the mother's side.

(e) Exclusion of daughter by custom or by statute.

There are two statutes of limited application that are excluded from inheritance. These
statutes are:
 The Watan Act (Bombay), 1886; and
 The Oudh Estates Act, 1869

(f) Relinquishment of Inheritance Rights.

If an heir voluntarily relinquishes her or his right of inheritance to the property, he can do
so. However, once relinquished, the right to reclaim a share in inheritance is not allowed.
The principle of estoppel operates here in accordance to Section 115 of the Indian
Evidence Act, 1872.

THIS WAS THE END OF MY LECTURE ON FRIDAY 19/05/2023.

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22/05/2023
The lecture was combined for the self-finance as well as the regular batch of the IVth semester.
The lesson plan was as follows-

SUNNI LAW OF INHERITANCE-

The division of heirs was into two categories-
The principal classes are:
1. Quranic heirs or Sharers or dhawul-furud
They are 12 in number (8 females and 4 males) where the share of each heir is fixed in
the Quran.
2. Agnatic heirs or Residuary or asabat
3. Uterine heirs or Distant kindred or dhawul-arham
The subsidiary classes are:
1. Successor by contract
2. Acknowledged kinsman
3. Universal legatee
4. Escheat.
Upon the death of the deceased, the first step is to make the payment for funeral expenses,
debts, and legacies of the deceased. Next, the property is divided amongst the respective
relations or sharers in proportion to the shares they are entitled to receive. If any residue
remains, it is then divided among the residuary. If there are no sharers and residuary,
the whole property will be inherited by the distant kindred.

A successor by contract is a person who entered into a contract with the deceased before his
death, in consideration to receive a payment. This payment can be interest, fine etc.

An Acknowledged kinsman is a person with whom the deceased made an acknowledgment

of kinship. Like, a man can acknowledge another as his brother, who becomes an
acknowledged kinsman.

Universal Legatee- In the absence of any relation in the principal classes and the first two
subsidiary classes, a person who is entitled to inherit the property of the deceased is known as
the sole legatee.
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Escheat-Finally, in the absence of any of the principal or subsidiary classes, the property of
the deceased is inherited by the State and his whole estate would escheat to the Government.

QURANIC HEIRS

The Quranic heirs or the sharers are those relations of the deceased whose shares have been
determined by the Quran. Their share and the order of preference in succession are fixed
under the Quran. There are 5 heirs who always inherit, I discussed the help of a chart I had
prepared-
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THE DOCTRINE OF RADD AND AUL-

The division of shares for inheritance is done by allotting a number or fractional part of
unity. It may happen that the fractions when added together are-
(i) Equal to unity.
(ii) More than unity
(iii) Less than unity.
When the sum of fractions of shares exceeds unity, the shares of the heirs are reduced
proportionally, which is called the Doctrine of Aul or Increase.
When the sum of fractions of the shares is less than unity, the shares of heirs are proportionally
increased respectively, which is called the Doctrine of Radd or Return.

DOCTRINE OF AUL OR INCREASE

Increase or "aul' is affected in the following manner.
"If the total of fractional shares allotted to sharers exceeds unity, 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."

Illustration
Husband’s Share- 1/2
Share of two full sisters 2/3

Since the total of 1/2 and 2/3 7/6 is more than unity, doctrine of 'increase' will apply in this
case.
 First step. Reduce fractional shares to a common denominator."
Thus, 1/2+2/3-3/6+4/6 (here 6 is the common denominator).

 Second step. Increase the denominator to make it equal to the sum of numerators,
and allow the individual numerators to remain.
Thus, 3/6+4/6 becomes 3/7+4/7. (Here 7 is the sum of numerators 3 and 4).

The shares are thus proportionately reduced and the sum of fractions comes equal to unity
(3/7+4/7-7/7=1)
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THE DOCTRINE OF RETURN OR RADD.

“If the sum of fractions allotted to sharers is less than unity (that is, something is left behind
after satisfying the claims of each sharer) and there is no residuary to take the residue, the
residue reverts back to the sharers in proportion to their shares. “

Exception.
In the presence of any heir, neither the wife nor husband is entitled to the Return.

Illustration
Mother’s Share- 1/6
Daughter’s Share- 1/2

As the total of 1/6 and 1/2 is 2/3, thus 1/3 remains to be distributed. The doctrine of return
would apply.

 First step. Reduce the fractional shares to a common denominator".

Thus, 1/6+1/2 1/6+3/6 (where 6 is the common denominator).

 Second step. Decrease the denominator to make it equal to the sum of the
numerators, and allow the individual numerators to remain."

Thus, 1/6+3/6 becomes 1/4+3/4 (where 4 is the sum of numerators 1 and 3).
The shares are thus proportionately increased, so that their sum becomes equal to unity
(1/4+3/44/4-1).
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SHIA LAW OF INHERITANCE

The Shias changed the pre-Islamic Law by altogether abolishing the differences between the
agnates and cognates as also males and females. The Shia system (unlike the Hanafi) shuffled
all the heirs, cognates, and agnates, males and females, and then classified them for order of
succession. There are no distant kindred under Shia Law as they are covered under the
two classes of heirs.
There are a total of 9 heirs (6 females and 3 males).
According to the Shia Law, there are only two groups of heirs:
(1) Heirs by consanguinity are further divided into three classes:
Class 1. (1) Parents;
(ii) Children and other lineal descendants h.1.s.
Class II.(1) Grandparents h.h.s: (true and false).
(ii) Brothers and sisters and their descendants h.l.s.
Class III (1) Paternal, and
(ii) Maternal, uncles and aunts of the deceased, and of his parents and grandparents h.h.s. and
their descendants h.l.s.
Class I excludes Class II, and Class II excludes Class III. But the heirs of each class, whether
they are of sub-class (i) or (ii), inherit together, the nearer in degree excluding more remote.

2) Heirs by marriage.
Under no circumstances the husband or wife may be excluded. They inherit together with the
nearest consanguine heirs. Sharers and residuary in Shia Law. Shias divide heirs into two
classes, namely sharers and residuaries; there is no class corresponding to the "distant kindred"
of Sunni Law.
The division of heirs into the above two classes is for the purposes of determining the shares
of individual heirs. There are nine sharers who take specific shares as shown in the table below.
The descendants (h.l.s.) of sharers are also sharers. Those heirs who are not included in the
class of sharers are all residuary. The descendants (h.l.s.) of residuaries are also residuaries.
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THE DOCTRINE OF RETURN OR RADD.

The doctrine of "return" in Shia Law.
If there is a residue left after satisfying the claims of sharers, and there are no blood relations
in the class to which the sharers (Koranic heirs) belong, the residue reverts to the sharers
proportionately.

Illustrations
Uterine Sister- 1/6 increased to 1/4.
Consanguine sister- 1/2= 3/6 increased to 3/4 .

THIS RULE IS SUBJECT TO THREE EXCEPTIONS-

Exception I: Spouse. Neither the husband nor the wife is entitled to the 'return', if there is any
other heir.
Illustrations
Husband-1/4.
Father-1/6 increased to 1/4 of 3/4 = 3/16.
Daughter-1/2 3/6 increased to 3/4 of 3/4 =9/16.

Exception II: Mother. -If the deceased leaves his mother, father, and one daughter, and also-
(i) two or more full or consanguine brothers; or
(ii) one such brother and two such sisters, or
(iii) four such sisters,

The brothers and sisters, though themselves excluded from inheritance as being heirs of Class
II, prevent the mother from participating in the return, and the surplus reverts to the father and
the daughter proportionately to their respective shares

Exception III: Uterine brother and sister. -Where uterine brothers and sisters survive with
full sisters, the uterine brothers and sisters do not participate in Return (This rule does not apply
to consanguine sisters).
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DOCTRINE OF INCREASE IN SHIA LAW.

The Doctrine of Increase in Shia Law. -Shia Law does not recognize the Hanafi doctrine of
Increase (Aul). Shia Law says that if the sum total of the shares exceeds unity, the fraction in
excess of the unity is deducted invariably from the share of
(i) the daughter or daughters;
(ii) the full or consanguine sister or sisters.

DIFFERENCE BETWEEN SUNNI AND SHIA LAW OF INHERITANCE

The differences were tabulated in the following chart that I had prepared-
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On this note, I ended the class while answering questions from the students.
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REFERENCES
 Syed Khalid Rashid’s Muslim Law, Fifth Edition, Eastern Book Company.
 Aqil Ahmad, Mohammadan Law, Central Law Agency.
 Dr. Paras Diwan & Peeyushi Diwan: Family Law, Allahabad Law Agency, Faridabad.
 B.R. Verma: Commentaries on Mohammedan Law in India, Pakistan and Bangladesh, Law
Publishers (India) Pvt. Ltd., Allahabad.