GENERAL PRINCIPLES OF MUSLIM INHERITANCE

Dr. G. Mallikarjun
• The Prophet introduced the reforms in the Pre-Islamic
customary principles of succession.
• The modified principles are:
The ascendants, (parents and certain ascendants) were
allowed to inherit along with the descendants. Eg, if a
Mohammedan died leaving behind a son and a father , both
would inherit.
Females and cognates were also recognized as heirs.

Relations by affinity were entitled to inherit. Eg the

husband and the wife could inherit to each other.

The newly created heirs (sharers) such as females, agnates

and relations by affinity , inherits the specified shares
 WHEN THE SUCCESSION OPENS

• Succession opens on the death of a

Mohammedan (i.e., the moment a person dies ,
his property devolves on his heirs).
• In case of a missing person, succession opens
on the date on which he is presumed to be dead.
• Mohammedan does not have the birth right.
• The first and the foremost initial stage in the
process of devolution of property is the vesting
of the property and then actual distribution of
the property.
• a Mohammedan does not have the birthright.
 HERITABLE PROPERTY

• The movable or immovable and ancestral or

self-acquired property of the deceased shall
be treated equally

• Under Mohammedan Law, the distinction

between ancestral and self-acquired property
is not recognised.
SEPARATE AND DEFINITE SHARES OF THE HEIRS

• Under Mohammedan law, there is no Hindu

conception of a joint family or joint property
• On the death of a Mohammedan, each of his
heirs takes separate and definite shares in his
estate all holding it as tenants- in- common
• An heir entitled to inherit the estate of the
deceased through different relationship will get
all his shares simultaneously.
 WHO ARE ENTITLED TO INHERIT?

Under SUNNI Law:

• The heirs under the Sunni law are divided into three classes:
 
• SHARERS: - Sharers are those persons including male or female,
who are entitled to specified shares of inheritance in the
property of the deceased.

• RESIDUARIES:-Residuaries are those persons who are entitled to

the residue of property of the deceased left allotting the
specified shares to the shares. The residuaries’ shares are not
specified.

• DISTANT KINDRED: - distant kindred are those blood relations of

the deceased who are neither the shares not the residuaries.
 STAGES OF SUCCESSION

• There are two main stages in the devolution of

the property of the deceased person are
1. Vesting of inheritance and
2. Distribution of inheritance
• The first and foremost initial stage of the
process of devolution is vesting of inheritance
and the second stage is the actual distribution
of the property.
 Cont.
• Succession opens immediately on the death of a
Mohammedan and the estate of the deceased vests in
them.

• The right of inheritance is not lost by the death of any heir

before the distribution of the estate, the property will
pass on to his own heirs.

• E.g. Mohammedan M dies leaving behind three sons A, B

and C. These three are his heirs. Before the distribution of
the estate among A, B and C , A dies leaving behind his
son D. A’s share will be given to his son D even though the
estate had not been divided as the property already
vested in A immediately on the death of M.
 General principles
• Mohammedan heirs are independent owners of their specified shares
• They take their shares subject to the charge of the debts of the
deceased and their liability is in proportion to the extent of their
shares.
• The heirs of the deceased hold their shares as if they are tenants-in
–common.
• The heir can alienate his share even if property has not been
divided.
 
• Where an heir is entitled to succeed through different relationships,
he will get all his shares simultaneously.

E.g: if a Mohammedan wife W dies leaving behind her husband H who

is also her father’s brother’s son, that H will succeed in both capacities
taking the shares as a husband and the share as a paternal uncle’s son.
 Cont.
• Inheritance in case of a missing heir
When a person dies, his estate immediately vests in his
heirs. But if any one of his heirs is missing then his specific
share shall be reserved until he re-appears or is presumed
to be dead.  

• Inheritance in case of the child in the womb

A child in the womb is entitled to inherit, as child would be
treated as being in existence at the time when succession
opens. Unborn child share will be reserved. Such right of
inheritance in favour of a child in the womb exists only if
child is born alive.
 
 RULE OF EXCLUSION ( DISQUALIFIED HEIRS)

HOMICIDE (MURDERER)

Under the Islamic Law, a murderer was excluded from inheritance

• Under Sunni Law, a person who causes the death of a person whether
intentionally, negligently, or accidentally is not entitled to inherit the
property of that person.

• Under the Shia law, the death of the person caused intentionally by the
heir, excludes him from inheritance. Death caused negligently or
accidentally by an heir will not disqualify him from inheritance.
 
• ILLEGITIMACY
• Under the Shia law, an illegitimate child is not entitled to inherit the estate
of a deceased.
• Under Sunni law an illegitimate child is entitled to inherit his mother but
not his father.
• SLAVERY
The Abolition of Slavery Act, 1843, has abolished the bar of
slavery.

• DIFFERENCE OF RELIGION
Under Islamic Law, an apostate, (non-Muslim) is not entitled to
inherit the property from a deceased Mohammedan. Section 3 of
the Caste Disabilities Removal Act, 1850, removed this disability. A
non-Mohammedan is entitled to inherit in the property of a
deceased Mohammedan whose heir he is, but his descendants will
not be entitled to inherit the property of a deceased
Mohammedan.
• DIFFERENCE OF ALLEGIANCE OR COUNTRY:
Not recognised in India
• ESTOPPEL IN SUCCESSION: Denial of relationship with
the propositus operates as estoppel in succession.
•  EXCLUSION OF DAUGHTERS FROM THE RIGHT OF
INHERITANCE:
Under the Muslim law daughters are given the right of
succession. Customs may exclude some heirs from
inheritance. Among the Gufars of Punjab and Jammu
and Kashmir, daughters are excluded from inheritance
by custom and they inherit only in default of agnates.
 DOCTRINE OF EXCLUSION

• Rule 1. A person who is related to the propositus

through another is excluded by the presence of the
later (brother or sister is excluded by the father. However, mother does
not exclude even a uterine brother or uterine sister. This is an exception)
• Rule 2. with in the limits of each class of heirs, an heir
nearer in blood excludes the more remote. (Thus son
excludes son’s son. Daughter, though near does not exclude brother’s
son because they are in different class)
• Rule 3. a person excluded may exclude others.
 
 HANAFI LAW OF INHERITANCE (SUNNI)
• According to Mohammedan Prophet pre-Islamic law of succession
was unjust. He introduced some more heirs called Quranic heirs or
sharers along with customary heirs.
 
• Three classes of heirs
Sharers
Residuaries
Distant Kindred
 
• Shares are those who are entitled to a prescribed share

• Residuaries are those who take no prescribed share, but succeed to

the ‘residue’ after the claims of the shares are satisfied
• Distant Kindred are all those relations by blood who are neither
Sharers nor Residuaries
• Cognates – heirs related through with the
intervention of females
• Agnates – heirs related only through the males
Agnates may be male or female
– agnates are preferred over cognates
– among agnates females are totally excluded from right of
inheritance
– nearest heirs exclude remote one
– only descendant will get the inheritance, ascendant and
collateral relations are excluded.
 DEFINITIONS

• TRUE GRANDFATHER means a male ancestor between whom and

the deceased no female intervenes Eg, FF, FFF, h.h.s
• FALSE GRANDFATHER means a male ancestor between whom and
the deceased a female intervenes. Eg MF, FMF, MMF, MFF
• TRUE GRANDMOTHER means a female ancestor between whom
and the deceased no false grandfather intervenes. EG. FM, FMM,
FFM,
• FALSE GRANDFATHER means a female ancestor between whom
and the deceased a false grandfather intervenes. Eg. MFM, MMFM
• Full brother and full sister – same father and mother
• Consanguine brother and sister – same father and different
mother
• Uterine brother and sister – different father and same mother
 Qua’anic Heirs

There are 12 Qua’anic Heirs (4 Men and 8 Women = Total: 12)

Men (Male Side)
1. Father
2. True Grandfather (h.h.s.)
3. Husband
4. Uterine Brother
Women (Female Side)
1. Mother
2. True Grandmother
3. Wife
4. Uterine Sister
5. Daughter
6. Full Sister
7. Son’s Daughter
8. Consanguine Sister
 Table of sharers Sunni law

  Shares In presence of child or child of a son In their absence

1 H ¼ 1/2
 

2 W 1/8 1/4

3 F 1./6 The father inherits as a residuary

4 TGF 1/6 excluded by Father The TGF inherits as a residuary provided there is no F or nearer TGF

5 M 1/6 no exclusion class 1/3

6 TGM 1/6 excluded by mother 1/3

7 D ½ : more than one D 2/3 each. In the presence of son, D becomes residuary No equal share
Son – 2 parts
D – 1 part

8 SD ½ : more than one D – 2/3 each excluded by son In difference in degree. Nearest exclude remote. In presence of SS
she will become a residuary. When there is only one D the SD
(whether one or more ) will take 1/6 , if there be no S or SS.

9 Full Sr ½ : more than one 2/3 each In presence of full Br. She will become a residuary
Totally excluded in presence of descendants and ascesdants.
Descendant –child or child of a son: ascendant – F,TGF

10 Consanguine ½ : more than one 2/3 With the consanguine brother she becomes a residuary
Excluded by full brother

11 Uterine Sr. 1/6: more than one 1/3  

Excluded in presence of child or child of a son , F, or TGF

12 Uterine Br 1/6: more than one 1/3  

Excluded in presence of child or child of a son, F or TGF
 sharers

• First sharers will take their share and the left

over, if any ,shall be given to residuaries if
there are no sharers and residuaries then
property shall go to distant kindered.
 RESIDUARY

– son – daughter takes as a residuary with the son, son takes double portion
– SS h.l.s – nearer degree excluding the more remote. More than one –equal share. SD h.l.s -
takes as a residuary with an equal SS
–F
– TGF
– TGF hl.s Nearer excluded remote
–D
– SD
– Full Br,- full brother takes as a residuary with Full Br. And he takes double portion
– Full Sr
– Consanguine Brother
– Consanguine Sr.
– Full Br’s son
– Consanguine Br’s son
– Full Br. SS
– Consanguine Br. SS
– Full Paternal uncle
– Consanguine Paternal uncle
– FPUS, CPUS, FPUSS, CPUSS
 In the presence of son, D becomes residuary

(A) (A)
| |
Daughter ______________
(Sharer) | |
S D
(Res) (Res)
 
 Examples
 
(P) died
___________________________
| | | son : 2/3 of 7/8 = 7/12
W (Wife) S (son) D (daughter) D : 1/3 of 7/8 = 7/24
(sharer) (Res) (sharer)
1/8 7/12 (Res) 7/24
 
 
 
 (P)
________________________
| | |
H M S D
(Sh) (Sh) (Res) (Res)
¼ 1/6 7/18 7/36

• total of H &W ¼ + 1/6 = 5/12

• remains 1- 5/12= 7/12
• son 2/3 of 7/12 = 7/18
• D 1/3 of 7/12 = 7/36
 (P)
___________________________
| | | |
H M Br Sr
(Sha) (Sha) (Res) (Res)
1/2 1/6 2/9 1/9

• ½ +1/6 = 4/6=2/3
• remaining 1/3
• Br 2/3 of 1/3 = 2/9
• Sr 1/3 of 1/3 = 1/9
 DISTANT KINDRED
Distant Kindred are those relations by blood who are neither
sharers nor residues

In the absence of residuaries, next preference given to this

category

Distant kindred are divided into four classes

Class I – descendants of the deceased

class II – ascendants of the deceased
class III -descendants of parents
class IV- Descendants of immediate grandparents (true or false)
General rule of getting shares of distant kindred
is that only in the absence of sharers and
residuary. But there are certain exceptions. If the
sharers are only husband and wife, then distant
kindred are included for inheriting the property.