INTRODUCTION.
The law of succession in
WE have
the Hindu Succession Act, the Parsi Succession Act, the Indian Succession Act
(which applies to Christians for the purposes with which we are now concerned),
and even a Jaina Succession Act (which has of course now fallen into disuse,
since Buddhists, Jains, and Sikhs are all now governed by the Hindu Succession
Act). As far as Muslims are concerned, the law of succession falls into two
broad streams, the Shia law of succession and the Hanafi law of succession.
Both these laws of succession form part of the common law of
The Muslim law of inheritance is a superstructure constructed on the foundation of pre-Islamic customary law of succession. In Islamic law distinction between the joint family property and the separate property has never existed, and in India Muslim law does not recognize the joint family property, though among the South Indian Muslims having matrilineal system, the institution of tarwad is recognized. Since under Muslim law all properties devolve by succession, the right of heir-apparent does not come into existence till the death of the ancestor. Succession opens only on the death of the ancestor, and then alone the property vests in, the heirs.
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Customary Principles of succession.-In the'
pre-Islamic
It is necessary to notice that the Koran did not create a new structure of law of succession, but merely amended and modified .the customary law of succession so as to bring it in conformity with the Islamic philosophy. What has happened is this that those persons who were not heirs under the customary law have been made heirs (called sharers or the Koranic heirs) and specific shares have been allotted to them. For instance, if A, a Muslim, dies leaving behind a widow, W and two sons S and S1, then W will take 1/8 as a specified share and S and SI will take the residue, i.e., 7/8.This superimposition of the Koranic principles on the customary law of inheritance has led to divergence of opinion among the Shias and Sunnis, resulting in the propagation of two different rules of inheritance (i) The Hanafis allow the framework or principles of the pre-Islamic customs to stand; they develop or alter those rules in the specific manner mentioned in the Koran, and by the Prophet.(ii) The Shias deduce certain principles, which they hold to underlie the amendments expressed in the Koran and fuse the principles so deduced with the principles Underlying the pre existing customary law, and thus raise up a completely altered set of principles and rules, derived from them. , The Hanafi law: general principles. - The Hanafis interpret the principles of customary law and Islamic law in such a manner as to blend them together in a harmonious manner; the customary, heirs are not deprived of their right of Inheritance in the estate of the deceased, but only a portion out of the estate is taken out and given to the heirs enumerated/in the Koran. This means that the basic structure of customary succession, the rule of agnatic preference, is retained-the agnates are still preferred over cognates. The, Koranic succession takes the agnatic principles further by recognizing the right of female agnates. Thus, if there is a female agnate (as specified -in the Koran) near to a male agnate (as specified under the customary law), then, by virtue of nearness of her claim to take a share in the estate of the deceased, she is allowed to take a share. But thereby, the male agnate is not deprived of a share, and male agnate takes the residue. Or, where the female agnate and the male agnate are equally near to the deceased, then the male heir takes twice the share of the female heir. It is submitted that this principle implies not only to female agnates but also to male agnates (i.e., those heirs who are made heirs by the Koran) ~ and it is wrong to generalize that the male heir as such always takes double share of a female heir. Thus, uterine brother and father as sharers do not take more than the uterine, sister and mother respectively. It should also be noticed that most of the newly created heirs are the near blood relations of the deceased who were ignored in the customary law. The Koranic imposition of new heir does not deprive the male agnates of their inheritance, but their rights are liable. To be affected if there exists a Koranic heir...If we examine the rights of the koranic heirs vis-vis the customary heirs, we find two situations: (i) the Koranic heir may be nearer to the customary heir. "1n such a case a specified portion of the estate is given to the Koranic heir at the first instance and then whatever is left' to be given to the customary heir. If there is more than one Koranic heir. then all of them take their specified portions. and the residue goes to the customary heirs. For instance, when a deceased has left a daughter and a brother, the former will take 1/2 (as specified by the Koran) and the brother will take the residue which is 1/2. If the deceased had left two daughters and a brother, then, the daughters together will take 2/3 (as specified by the Koran) and the brother will take the residue which is 1/3. (ii) The Koranic heirs and the customary heirs may be equally near to the deceased. In such a case double portion is given to the customary heir. In this situation the Koranic heir is a female of equal proximity with the customary heir, but she was disqualified under the customary law on account of her sex. Now she has been made to rank equally with the customary heirs in respect of the residue of the estate after the prior claim of the Koranic heirs are satisfied. As to the rights of heirs vis-a-vis each other, if the heirs of the same class differ from each other in their sex, they- inherit e9ually (here the principle of male tak41g twice the share of a female goes not apply). For instance, if a Muslim dies leaving behind father and mother, then each takes 1/6 of the estate. In this case neither can claim priority over the other on the basis of greater proximity or on the basis of customary law. \
The modifications thus made by the Koran as interpreted by the Hanafis are restricted to agnates, with a few exceptions where under some cognates, such as uterine brother and uterine sister, are also included. The modifications do not go to any collateral remoter than sisters. Further, these modifications in their application to relations other than descendants are hedged with exceptions. The Hanafis have so interpreted the Koranic rules that the customary heirs right to inheritance is not affected, though a slice of the estate is taken away for the Koranic heirs. Sometimes the customary heirs are also required to share the residuary estate with the Koranic heirs, and in that process, sometimes, no residue of the estate is left for them. (But this happens in a very few cases).
Under the hanafi law, the general rule of distribution
of the estate is per capita and
not per stripes.
Ithana Ashari law; General principles.-
The basic differences between theIthana Ashari law and the Hanafi law arise on account of the fact that the latter interpret the Koranic rules strictly and hold that the Koranic rules are nothing but transposition of certain rules on the customary law of succession, while the former interpret the Koranic rules so widely as if they lay down an independent scheme of succession. Thus, the Ithana Ashari interpretation of the Koranic rules does not recognize the prior rights of agnates over cognates or of males over females. With the exception of the rights of husband and wife, the Shia law lays down that the estate of the deceased devolves on blood relations equally, though among themselves they take per stripe: the females are allotted half the share allotted to the males in each grade. This also results in descendants, ascendants and collaterals inheriting side by side.
Doctrine
of Representation and Stripttal Succession,
Under Hindu law, the doctrine of representation is utilized for two purposes: (i) for determining the heirs, and (ii) for determining the quantum of share of an heir or a group of heirs. The per stripes rule means that where there are branches, the division of property takes place according to the stock, i.e., at the, places where branches bifurcate. Thus, suppose P dies leaving behind a son, s and grandson ss, who is a son of a predeceased son. By the application of the doctrine of representation, ss, representing his father, will be an heir and will take the same share which his father would have taken l).and he been alive. This means' that s will take 1/2 and ss will 1/2. Under the hanafi law, no aspect of the doctrine of representation is recognized, with the result that in the above illustration the son will take the entire property and no grandson will take any share. The result under the Shia law is also the same. But the Shia law recognized the doctrine of representation for the second purpose, viz., for determining quantum of shares in certain cases. For instance, if P dies leaving behind three grandsons, A, B and C from a son S, and two grandsons, X and Y from a predeceased son S1, and a grandson Q from a predeceased son S2, then the distribution of assets will take place not in accordance with grandsons, but in accordance with sons. In this example, the share of S, S1 and S2 will come to1/3 each. S's 1/3 will go to A, B and C each taking 1/9; S1's 1/3 will go to X and Y each taking 1/6 and S2's 1/3 will go to Q. Under the Hanafi law each grandson will take per capita, i.e., A, B, C, X, Y and Q, each will take 1/6 share in the assets. The doctrine of representation and the striptal succession for the purpose of calculating the shares of certam heirs is the basic principle of the Shia law and is applied throughout. This is not confined to descendants but is also applied to ascendants. Thus, the descendants for the deceased son, deceased uncle, deceased aunt, deceased daughter, deceased brother, deceased sister, if they are heirs, are all covered by the doctrine of representation. Similarly, the rule is applied to great grandparents who would take the same share which grand parents would have taken had they been alive. The father's uncles and aunts are also covered by the rule.
Definitions.
Agnates.-An agnate is a. relation who is related to the deceased whole through males. Thus, the following are the examples of agnates, son, son's son,son's son's son, son's daughter, son's son's daughter, father's father, father's,mother, father's father's .father; father's father's,mother..
Cognates.-A cognate is a relation who is related to the deceased through one, or more females. For example, the following are cognates: daughter's son, daughter's daughter, mother's father, father's mother's father.
Collaterals.-Collaterals are descendants in the parallel lines from the common ancestor or ancestress. Collaterals may be agnates or cognates. Thus, consanguine brothers and sisters, paternal aunts and uncles are agnate collaterals. Maternal uncles , aunts, uterine brothers and sisters are. Cognate, collaterals.
Heir.-A.
person who is entitled to inherit the estate of another after his deaths known as an heir. .' .
True grandfather.-A male ancestor between whom and the deceased no female intervenes is known as the true grandfather. For instance, the father's father, father's father's father and his father how high so ever are all the true grandfathers. .
False grandfather.-A. Male ancestor between whom' and. the deceased, a female intervenes is. known as the false grandfather. For instance, mother's father, mother's father, father’s mother's father are false grandfathers.
True grandmother. -A female. Ancestor, between whom and the deceased
no false grandfather intervenes are known as the true grand mother. Thus, father’
mother, mother's mother, father's mother's mother, father's father's mother.
Mother’s mother's mother are all true grandmothers. '
False grandmother.-A female ancestor between whom and the deceased a false grandfather intervenes. Thus, mother's father's mother is a false grandmother. .
Son's son how
low so ever.-Lineal male
descendants are known as son's son how low so ever. For instance, son's son,
son's son's son and so on, are all son's son how low soever. .
Son's daughter how low soever.-The female children of lineal male descendants are known as son's daughter how low soever~ Thus, son's daughter, son's son's daughter, and so on, "are also son's daughter how low soever.
HANAFI LAW OF INHERITANCE.
Under any law of intestate succession, two questions that arise are: (i) who are the heirs of the deceased, and (ii) to what share the heirs are entitled. Muslim law-givers have gone into details in laying down the. categories of the persons who are entitled to participate in the inheritance, and the respective shares to which each categories of heirs are entitled to receive.
Heirs
Islamic law superimposed on the customary structure certain blood relations who are either equally near, or more near, to the deceased than the customary heirs. Among these new heirs are certain females, and some ascendants and collaterals. The spouse of the deceased is allowed to take a share in the inheritance, as a. relation by affinity. Looked at in' this the perspective, apart from the spouse (husband or wife) of title deceased, the other heirs specifically mentioned in the Koran are at par with customary heirs. Thus, son~ or son's son how low so ever, is entitled to inherit under the customary law. The Koran superimposed daughter, son's daughter or son's'son's daughter how low so ever, and gave her a specified share. It should be noted that daughter’s daughter, who is a cognate, arid therefore remoter than the son or son's son, is not included. Since son and daughter were included, it was logical to include mother and father. Similarly, since son's son and son's daughter were included, it was .logical to include true, grandfather and true grandmother. It was equally logical to include certain collaterals. Thus, were included full and consanguine sisters, since full and consanguine brothers were heirs under customary law. For the same real Son, were included uterine brothers and sisters. To these newly created heirs, the Koran allots a specific share. These new heirs are commonly called "sharers". It is noteworthy that the fractional shares that are specified by the Koran are only six, namely 1/2, 1/4, 1/8, 2/3, 1/3 and 1/5.
The sharers are allotted their specified shares. Then whatever is left after allotting share 'to the sharers the rest-residuary is divided among the customary heirs. These heirs are commonly called "residuary". This term came into vogue on the assumption that after giving specified shares to the sharers, whatever is left is given to them. .
Distribution of Assets among the
Sharers and Residuaries.
Among the
heirs the sharers are to be given their share first, and then the residue is to
be distributed among the residuaries. In the absence of the sharers, the
residuaries take the entire estate. In the absence of both the sharers and the
residuaries, the estate devolves on the distant kindreds. In their absence, the
estate goes to the State. . .
The peculiarity of the Muslim law of inheritance is that although the sharers are class I heirs and the residuaries are class II heirs, they together share the property. After shares have been allotted to sharers, the remaining property goes to the residuaries. Thus, if a Muslim dies leaving behind a mother, M, a son, 5, and a daughter's son, DS, then mother as sharer will take 1/6 and S will take the remaining 5/6 as residuary. DS will be totally excluded from the inheritance, since he is a distant kindred. There is only one case when a distant kindred inherits along with a sharer, viz., when the sharer is a husband or wife and there is neither any other sharer nor a residuary, then the distant kindred inherits along with the husband or the wife. Thus, if a Muslim dies leaving behind a widow, W, and full sister's son FSS (who is distant kindred), then W will take 1/4 as sharer, and the residue of the estate, namely, the 3/4 will go to FSS. .
Among the heirs of a class which one of them will take the estate, and in what portion, depends upon the circumstances of each case. The general rule of preference is that a nearer heir excludes a remoter one. Thus, if a Muslim dies leaving a son and a grandson (son's son or a son from a predeceased son), then son alone will inherit, and the grandson will be excluded, though both are residuaries. Similarly, if a Muslim dies leaving behind a father and a true grandfather, then the father alone will inherit an4 the true grandfather will be excluded, even though both are sharers. Among the residuaries the descendants are preferred over ascendants and collaterals, and ascendants a~ preferred over collaterals. Among the: collaterals, the descendants of a nearer ancestor are preferred over the descendants of a remoter ancestor. When all the heirs claiming property are equally near, they share equally with this rider that a male heir (generally) takes double the portion of a female heir. .When one is related to the deceased through another, one does not inherit as long as that another is alive. Thus, father excludes both a brother and a sister.
However, brothers and sisters are not excluded by the mother. The reason is that when the mother is alive, she cannot. c1aim to inherit the entire estate. When there is no other heir, she takes part of the estate as a sharer, and the rest by return (see below, under the head "Doctrine .of Return).
In the Hanafi scheme of inheritance, the following
five heirs are always entitled, to a share in the estate; namely, husband~
wife, child, father and mother. These heirs are called primary heirs. Next to
U1em are "substitutes" : they are the substitutes of the last three
primary heirs. These are child of a son. how low so ever, true grandfather, and
true grandmother.
Husband and Wife.
If a Muslim male dies leaving behind a widow and children, then the widow takes 1/8, and the residue (i.e., 7/8) goes to children. If he dies leaving behind a widow and no child, then the widow, takes 1/4. If he dies leaving behind more than one widow, then 1/8 (when there are children), or 1/4 (when there are no children), is distributed among them equally.
If a Muslim female dies leaving behind her husband and children, then the husband takes 3/4 as a sharer and the residue of 1/4 goes to the children. If she dies leaving behind no child, then the husband takes 1/2 as a sharer. Thus, a Muslim female dies leaving behind her husband, H and her father F. H will take 1/2 as a sharer and F will take the remaining 1/2 as residuary.
Father
and True Grandfather
The father is always an heir. Under no circumstances can he be excluded from inheritance. The true grandfather, being a substitute; is always excluded by the father. A nearer grandfather always excludes a remoter grandfather. '
, The position of father as an heir may be discussed under the following circumstances: (a) Where the deceased had left children, the' father takes 1/6 share. Thus, when P dies leaving behind his father and a son. the father will take 1/6 and the son, will take 5/6, (b) Where there are no children (or child) or agnatic descendants, the father and, in his default, the grandfather, takes as a residuary, (c) Where a Muslim dies leaving behind a mother and a father, the mother takes 1/3 as sharer, and the father takes 2/3 as residuary, (d) In certain circumstances the father may take in dual capacity, as a 'sharer and as residuary. Thus, where a Muslim dies leaving behind his father and a., daughter, then the daughter takes 1/2 as a sharer, the father takes 1/6 as sharer and' the residue of estate, i.e., 1/3, he takes as a residuary: Thus, the father will take 1/6+1/3=1/2. In this situation the position of the grandfather (in the absence of the father) will be the same, since he is a substitute for father.
Thus, P, a Muslim dies leaving behind father F, a grandfather FF, a mother, M, a grandmother MM, two daughters D and D1, and a daughter of a predeceased son, SD. FF will be excluded by F and MM will be excluded by M. F 'fill take 1/6, since there are no children of the deceased. M will take 1/6, for the same reason. In the presence of daughters, SD will not take any share. The remaining 2/3 will go to D and D1, between them they will share equally, i.e., 1/3 each.
Mother
and True Grandmother .
Mother is never excluded from inheritance. 5he takes 1/3 where there are no children, and she takes 1/6 where there are children. The true grandmother inherits in certain circumstances: (a) the maternal grandmother is excluded by mother or nearer true grandmother, paternal or maternal. (b) The paternal true grandmother is excluded by the father, the mother and by a nearer true grandmother, paternal or maternal, as well as by a nearer true grandfather; Thus, P, a Muslim, .dies leaving behind his mother M, sons son, S and and a daughter, D. M will take 1/6 as sharer, and the rest will go to D, S and S1 as residuaries: D taking 1/6,. S taking 2/6 and S1 taking 2/6.
(c) The mother takes one-sixth share if a Muslim dies leaving behind two sisters, or one brother and a sister (full, consanguine or uterine). In the presence of the father, sisters do not inherit. It is a curious aspect of Muslim law that an heir may be totally or partially excluded from inheritance by another, yet his presence may exclude another heir partially or totally., Thus, P dies leaving behind his mother, M, father, F, two full sisters, PO and PD1. M will take 1/6, as on account of two sisters her share is only 1/6. But FD and PD1 are excluded on account of the presence of F. F will take remaining 5/6.If the deceased dies leaving behind mother and only one sister or one brother and no child, then the mother takes 1/3 share. Thus, P dies leaving behind his mother, M, a sister PD and father F: Mother will take 1/3; D will be excluded because of the father. F will take the remaining 2/3 (d) When a Muslim dies leaving behind husband/wife, mother and father, the rule is that the mother will take only 1/3 of what is left after allotting the share to the wife/husband. Thus, a Muslim dies leaving behind her father P, her husband H, and her mother M. H, as sharer, will take 1/2 (the rule is that
whether there is no child or child of a son how low soever, he takes 1/2 share). The mother will take 1/3 of 1/2, i.e., 1/6. F will take as a residuary heir the remaining 1/3.P dies leaving behind a widow, W, mother, M, and father, F. We will take 1/3 as a sharer. M will take 1/3 of remaining 3/4, i.e., 1/4. F as a residuary will, take the remaining 1/2.P dies leaving behind his father F, father's mother, PM and mother’s mother’s mother MMM (mother's mother being dead). Here F will exclude PM. At the same time PM excludes MMM, since she is the nearer true grandmother.
The result is that the entire estate goes to F who takes it as a residuary heir. It should be noted that if there was no PM, then MMM would have taken her share of 1/6 as true maternal grand mother, since F does not exclude her. This is also an illustration where an heir excludes another, and at the same time he/she is himself totally excluded from inheritance.
Daughter and Son's Daughter how low soever.
The daughter takes a share in the estate of
the deceased parent, when there is no son, when once she takes 1/2: when two or
more, all of together take 2/3. With sons she takes as a residuary. When
daughter alone is the heir, she takes her half share and the other half to her
as residuary. The son's daughter takes 1/2, when one, 2/3 when two or more, in'
the absence of son, daughter's higher son~s son~s son, daughter or equal son's
son with equal son's son's son, she takes as residuary. The son's daughters
take per capita and not per stripes. Ihis means that
the share of son's daughters is divided into as many parts as are son's
daughter, irrespective of the number of sons. Under the Hanafi law the son's
daughter inherits in her own right, and not as representative of the son The
son’s daughter is not excluded when there is only one daughter, but takes 1/6
as a ,sharer. This principle applies to lower son's daughters also (such 1 as
son's daughter how low soever); Thus, P dies leaving behind his father F, mother
M, daughter, and four daughters of a predeceased son. SD, SD1, SD2,SD'. In this
case F will take 1/6 as sharer, M will take 1/6 as sharer, D will take1/2 as
sharer and SD, SDl, sD2, sD', together will take 1/6, each taking 1/24.Or, P
dies leaving behind her father F, mother M, son's daughter SD and son’s son’s’
daughter SSD. F will take 1/6, M will take 1/6, SD will take 1/2 and SSD will
take 1/6. . . .
Sisters.
The sister is a sharer, one. sister takes 1/2 share; two or more take 2/3. (a) But she is not a primary heir. She, takes only in the absence of a son, son's son, how low soever, father and true grandfather. (b) With full brother (and in certain cases with daughter) she becomes a residuary. (c) If there are more than one full sister, consanguine sister is excluded. But where there is only one sister, then consanguine sister takes 1/6. For example;
(i) P dies leaving behind a husband, H, .and a sister PD. H will take 1/2
and FD will take one-half.
(ii) P
dies leaving behind a full sister, FD, three consanguine sisters, CSl, CS2,
CS3, one uterine sister
Uterine Brother and Uterine Sister.
The uterine brother and uterine sister are not primary heirs. They inherit only in certain circumstances. (a) The uterine brother and uterine sister are excluded by a child, son of a child how low soever, father, true grandfather. (b) A full brother or a full sister does not exclude a uterine brother or a uterine sister.
. (c) Whenever the uterine brother and sister inherit they take equal share; the rule of male taking double portion does not apply to them. (d), Uterine brother and uterine sister take 1/6 share. Where there are more than one uterine brother or uterine sister they together take 1/3, and between them share it equally. We may take two examples:
. (1) P dies leaving behind two full sisters and two uterine sisters. The hill sisters together will take 2/3, each taking 1/3 and uterine sisters together will
take 1/3 each taking 1/6.
(ii) There is one interesting case, the Himariyya, where .a Muslim female , died leaving behind her husband, H, mother, M, two uterine brothers, UB, UBI and one full brother, PS, H took 1/2, M took 1/6, UB and UBI took 1/3. In this manner we find that the entire estate was exhausted, and nothing was left for FS, the. full brother. In this case full brother would have taken as a residuary, had some residue been left.
Residuaries: Distribution of Assets
.
We would proceed to give a few more examples where the residuaries predominate. .
All residuaries are related to the deceased through males. Residuaries may be classified as: (a) descendants of the deceased, (b) ascendants of the deceased, and (c) collaterals of the deceased. The collaterals may be further divided into: (i) descendants of the deceased's father, and (ii) descendants of the deceased's father's father how high soever. .
It should be noted that Six' sharers. inherit as residuaries in certain circumstances. These are: (a) the father, (b) true grandfather how high soever,
(c) daughter, (d) son's daughter, (e) full sister and (f) consanguine sister. Of these, the father and the' true grandfather inherit in certain circumstances both as sharers and residuaries. No other heir can inherit in double capacity. The other four who are all females, inherit either as sharers or as residuaries. They succeed as residuaries when they co-exist with male heirs of equal proximity. For instance, the daughter inherits as a sharer when there is no son. When there is a son, she inherits as a residuary. The same applies to the other females. These are the only four females 'who inherit as residuaries, and they inherit in that capacity along with the males of equal proximity. Except the son's daughter how low soever, no one of these females can, as residuary, succeed with a male of lower grade. For instance, daughter can neither succeed as residuary with son's son nor can sister succeed with brother's son. But son's daughter inherits as residuary not only with son's son's son how low soever. For example, when a Muslim dies leaving behind two daughters, D and D1, a son's son's son, SSS, son's daughter, SO, and son's son's daughter SSD, then D and D1 together will take 2/3 as sharers, SSS 1/6 as residuary, SD 1/12 as residuary, SSO 1/12 as
Residuary. We may take two more illustrations. .
(i) P .dies leaving behind daughter, D, son's daughter, SD, son's son's daughter, SSD, and son's son's son, SSS. 0 will take 1/2 as sharer, SD will take 1/6 as sharer, SSS and SSD will take the remaining as residuaries, SSD taking 1/9 and SSS taking 2/9. .', .
(ii) P, a Muslim, dies leaving behind two daughters, D and D1, a son's daughter, SD, and son's son's son, SSS. D and D1 together will take 2/3, as sharer, and the remaining will go to SD, SSS as residuaries, SSS taking 2/3 and SD taking 1/9 (in accordance with the rule that male takes double portion).
Doctrines of Aul (increases)
and Radd (return)
In a system of law which assigns fixed shares to heirs, two anomalous situations are likely to arise: The sum of shares allotted to various heirs according to their entitlement, (i) may be in access of the unity, or (ii) may be less than the unity. The former situation is solved by' the application. of the doctrine of aul or increase, and the .latter by the application of the doctrine of radd or return.
Doctrine of aul. or increase.-When the sum total of the shares' allotted to various heirs in accordance with their entitlement -exceeds the unity, then the doctrine of aul lays down that the share of each heir should be proportionately reduced. This is done by reducing the fractional shares to be common denominator. Since this is done by increasing the denominator, the doctrine has been given the name of increase (aul) though in fact the shares are proportionately reduced. We may exp1ain the doctrine by an example: ".
P dies leaving behind her h1.1sbarid, H, two full sisters, FD and FDl, and
Mother M They will be allotted the shares as under:
. H..:..1/2
or 3/6
FD & FD1~...2/3 or 4/6.
M..:.. l/6. .
The proportionate reduction of shares is achieved by increasing the denominator from 6 to 8. Thus, the shares of the' respective shares will be : H will take 3/8, FD &: FD1 4/8 and M 1/8. Â
We
may take another example: P dies leaving husband, H, full sister, FD, two
uterine sisters, MD and MDI, two uterine brothers, MS and MSI and mother, M.
All these heirs are sharers. In accordance with their entitlement, their shares
will come to: M 1/6, H 1/2, FD 1/9, MD,
Doctrine of radd or return.
-When there is surplus
left after allotting the shares to the sharers in accordance with their
entitlement, and there are no residuaries to take the surplus, then the
doctrine of return lays
down that the surplus is
to be distributed among the sharers in proportion to their respective shares.
This doctrine, recognizes one exception, viz., neither the husband nor the wife
is entitled to the return so long as' there is alive another sharer or a distant kindred. But in
Examples. ' '
(i) P dies leaving behind his mother M, and his daughter D. M takes 1/6 and D takes 1/2. There remains 'a surplus of 1/3. Since there is no residuary, 1/3 will return to D and M. M's share will be increased to 1/4 and D's share to 3/4'.
The formula in the case of return is to reduce the common denominator.
(ii) P dies leaving behind his wife, W, and none else.' W will take 1/4 as
Sharer and 3/4 by return. When, there is no other heir, the doctrine of return applies to the spouses.
Distant Kindred.
In the absence of the sharers and the residuaries, the estate, devolves on the distant kindred. There is only one case in which the distant kindred inherits along with a sharer. When the only surviving Sharer is a husband or a wife and there is no residuary then the husband or wife takes his or her share, and the rest of the estate goes to the distant kindred.
In the classes distant kindred are all those blood relations of the deceased who have not found a place either among the sharers or residuaries, there are: (a) female agnates, and (b) cognates, both males and females. These two classes of relations constitute the distant kindred.
For the purpose' of distribution of assets among them, the, better classification of distant kindred would be into: (i) descendents, (ii) ascendants, and (iii) collaterals. The classification of the distant kindred may be worked out thus:
I. Descendants of the deceased. Under this category will fall:
(i)daughter's children and their descendants how low so ever
(ii) son's daughter's 'children, how low soever' and their descendants without any limit (ad infinitum).
II. Ascendants of the deceased. Under the category will fall:
(i) False grandfather how high soever, and
(ii) False grandmother how high soever.
. Collaterals. The
collaterals may be further divided as under:
(a) Descendants of parents.
Under this head will fall:
(i) full brother's daughters, and their descendants,
(ii) consanguine brother's daughter, and their descendants,
(iii) uterine brother's children and their descendants,
(iv) daughters of full brother's sons how low soever, and their
. descendants,
(v) daughters of consanguine brother's sons how low soever,
and their .descendants, and
(vi) children of sisters (full consanguine and uterine how
low so ever and their descendants).
(b) Descendants of immediate grandparents
(true or false). Under
this head will fall :
(i) full paternal uncle's daughters and their ,descendants,
(ii) Consanguine paternal uncle's daughters and their
descendants,
(Ill) uterine paternal uncles and their children and their
descendants,
(iv) daughters of full paternal uncle's sons how low soever
and. their descendants,
(v) daughters of consanguine paternal uncle's sons how low
so ever and their descendants,
(vi) paternal aunts (full, consanguine or uterine) and their
children and their descendants,
(vii) Maternal uncles and aunts and their children and their
descendants,’
(c) The descendants of
remoter grandparents how high soever (true or false), in the same
order and like manner as the descendants, of all, immediate grandparents.
The number of collaterals is limitless, all the descendants of all the ascendants, without any limit as to degrees, are included.
Distribution of
Assets among the Distant Kindred
The distant kindred succeed to the estate of the deceased only in the absence of the sharers and residuaries with one exception, viz., when husband or wife is the sole heir, then the distant kindred take the residue. Among the distant kindred, the rules of distribution of assets and of exclusion may be stated thus:
(1) When among the claimants there are descendants, ascendants and collaterals, the descendant distant kindreds are preferred over ascendant distant kindred and collateral distant kindreds. When the claimant distant kindreds are ascendants and collatera1s, then ascendant are preferred.
(2) When all claimants are descendants,
then the one who has fewer degrees of
descent will be preferred. "
(b) If all of them have equal degrees of descent, then the children of
sharers and residuaries are preferred over the children of distant kindred.
(c) The order of preference among the descendants is as under:
(i) daughter's children,
(ii) son's daughter's children,
(Ill) daughter's grandchildren,
(iv) son's son's daughter's children,
(v) daughter's great grandchildren and son's grandchildren, and
(vi) the other descendants of the deceased in the like order.
(d) If the claimants have the degrees of descent and the sexes of intermediate ancestors do not differ, then. all the claimants take per capita, male taking double portion. Thus, if P dies leaving behind daughter's daughter, DD, and daughter's son, DS, DD will take 1/3 and DS will take 2/3.
(e) If the intermediate ancestors differ in their sexes, then the following
rules apply:
(i) Where there are two claimants, each claiming through his own line of ancestors; the rule requires to stop at the stage of descent, where sexes differ and assign the. share at this stage assigning double portion to male and one portion to female ancestor. The shares so assigned will descent to the claimants, irrespective of their sexes.
(ii) Where there are three or more claimants and each is claiming through a different line of ancestors, then the rule lays down to stop at the line where sexes differ and to allot shares there, ~ale getting double portion and female getting one portion. But the shares so allotted to ancestors do not descend on the claimants. But the shares of all male ancestors on one side' and of female ancestors on the other are pooled together, and then divided among the descendants, the male getting double portion and female getting one portion. For example, P. dies leaving behind a daughter's son's daughter, DSD, a daughter's daughter's daughter, DDD, and a daughter's daughter's son, DDS, Since the sex of the ancestors differ at the second line of descent, the shares are to be. allotted here, male getting double portion and female getting one portion.
DS
will get 1/2, DD will get 1/4 and DD1 will get 1/4. Since there are two
females, their shares will be pooled together which will come to 1/2. Since in
the line DS there is only one heir, his 1/2 will go to DSD. DD and DDI'S 1/2
will go to DDS and DDD, the male taking the double portion. This will mean that
DDS will take 1/3 and DDD will take 1/6. This is the rule followed in
(1ll) Where there are two or more claimants claiming through the' same intermediate ancestor, the rule is to count each of such ancestors if male, as many males as there are claimants claiming through him and, .if female, as many females as there are claimants claiming through her, irrespective of the sexes of the claimants. When an intestate leaves descendants in the fourth or remoter generations, this process is to be applied as often as there may be occasions to group of the sexes of intermediate ancestors.
Ascendants
On the failure of descendant distant kindreds, the property devolves on the ascendant distant kindreds. a) Among the ascendant distant kindreds, the nearest is mother's father. If he exists, he will take the entire estate. On his failure, estate will devolve on such false grandfather or grandmother who trace their ascend through a sharer, viz., father's mother'sfather and mother's mother's father. If both co-exist, the FMF being on the paternal side will take double portion, while MMF being on the maternal side will take one portion. This means that FMF will take 2/3 and MMF will take 1/3.
(c) On the failure of father's mother's father and mother's mother's father the property will devolve on the false ancestors in the third degree, namely, mother’s father's father and ,mother's ,father's mother. Since both are on maternal side and the sex of the intermediate ancestor is also the same, MF being male will take 2/3 and MFM being female will take 1/3.
The rules of preference among the ascendant distant kindred may be stated
thus:
(i) the nearer in degree excludes the remoter,
(ii) among the claimants of the same proximity, those related to the intestate through sharers are preferred to those related through distant kindred,
and .
(ii) among the claimants of both the paternal 'side and materna1side of equal degrees, the claimants on the paternal side will get double the portion over the claimants on the maternal side, i.e., 2/3 : 1/3. The next step is to divide the portion assigned to paternal side among the ancestors of the father and the portion assigned to maternal side among .the' ancestors of the mother, in the same manner as among the descendants.
Collaterals ,
Earlier we have grouped collaterals under three categories. In the first come nephews and nieces and their descendants. In the second category fall Uncles and aunts and their descendants. In the third category are descendants of the remoter ancestors" the great grandparents, how high soever. The, collaterals comprise a vast and complicated group of heirs. In actual practice they succeed seldom. Among the collatera1s these are the following rules of exclusion: (i) A claimant nearer in degree excludes the remoter; and
(ii) Among the claimants of equal proximity, the children of residuaries are preferred to .those of distant kindred.
(ill) Among the claimants of the same degree and not excluded by virtue of Rule (ii)(a) the descendants of full brother exclude those of consanguine brother and sister; (b) but the descendants of full sisters do not exclude the descendants of consanguine brother and sister; (c) the descendants of the uterine brother and sister do not exclude the descendants. of consanguine brother and sister (after allotting 'shares to the descendants of full sister and to the descendants of the uterine sister and brother.' the residue, If any, goes to the descendants of consanguine brother and sister); and (d) the descendants of uterine brother and sister are not excluded, by the descendants of, either the full brothers and sisters or by consanguine brother and sister, they inherit along them.
STATE: AS
AN HEIR BY ESCHEAT.
In modern
CONCLUSION.
The divine justness and equitability of the Islamic laws of inheritance have been correctly appreciated by many non-Muslim scholars such as Professor Almaric Rumsey (1825-1899) of King's College, London, the author of many works on the subject of the Muslim law of inheritance and a barrister-at-law, who stated that the Muslim law of inheritance, "comprises beyond question the most refined and elaborate system of rules for the devolution of property that is known to the civilized world.1"
To understand
the Islamic laws of inheritance as a whole it is necessary to consider the
system of inheritance that operated within the
As we shall see the Quran does not expressly state the share of the male agnate relatives as such, although it does enact that the share of the male is twice that of a female. The Sunni jurists take the view that the intention of the Quranic injunctions was not to completely replace the old customary agnatic system entirely but merely to modify it with the objective of improving the position of female relatives. The Sunni Islamic law of inheritance is therefore, an amalgamation of the Quranic law superimposed upon the old customary law to form a complete and cohesive system.
BIBLIOGRAPHY.
Family Law: Hindus, Muslims, Christians,
Parsis and Jews ,Paras Diwan and Peeyushi Diwan. Reprint.
Outlines of Muhammadan Law, Asaf A.A. Fyzee, Oxford University Press ,Mar 2008 , 1st
ed.
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