Muslim Law OF Inheritance

 Muslim Law OF Inheritance

Q. 12 (a) Outline the distinguishing features of the law of inheritance under Muslim Law.

Ans.

1. Application of law. The property of a deceased Muslim is to be distributed according to the law to which he belonged at the time of his death. Thus, if a Hindu embraces Islam, and dies a Muslim, the distribution of his estate will take place according to Muslim Law and his Hindu relatives cannot claim any benefit.

 

2. Nature of property heritable.-There is no distinction in Muslim Law between movable and immovable property or real and personal property, or ancestral and self-acquired property, or between separate and joint family property.

 

3. No Primogeniture. In the absence of any custom there is no rule of primogeniture. If a man leaves several children, the eldest does not exclude the rest. However, under Shia law the rule of primogeniture is recognized to some extent.

 

4. No spes-succession.-Unlike Hindu Law, Muslim Law does not recognize the birth right of an heir. Under Mitakshara school of Hindu Law, a male member gets right in the coparcenary property as soon as he is born. Now, after the commencement of the Hindu Succession Amendment Act, 2005, daughter of a Mitakshara Coparcener also has an interest in the Mitakashara Coparcenary Property by reason of her birth. But under Muslim Law the right of an heir comes into existence only on the death of the ancestor.

 

5. Female heirs not disentitled.-Under Muslim Law females get shares with the males in inheritance.

6. Doctrine of Representation.-The doctrine of Representation is foreign to Muslim Law. Before the death of the ancestor, the would be heir has no right in the property and as such he cannot transfer his expectant share before the death of ancestor, nor do his heirs get any right if he dies before the death of ancestor. Thus, should B, who would have inherited on the death of A, die during the life-time of A, the heirs of B will have no claim as the representatives of B when the succession opens on A's death. The rule of representation refers to two things: (i) the persons entitled to inherit, and (ii) the quantum of share to which a heir is entitled. The rule of representation is applicable to some extent under Shia Law.

 

7. Vested inheritance.-On the death of Muslim, the person entitled to share takes a vested interest.

 

8. No presumption as to joint family.-There is no presumption as to joint family among the Muslims in the sense the term is understood in Hindu Law, though the family may be living in commensurability.

 

9. Exclusion from inheritance.-Slaves, murderers, aliens and apostates are excluded, from inheritance. Since the abolition of slavery, the rule of exclusion of slaves from inheritance has become obsolete.

 

10. Classes of heirs.-Under Sunni Law, there are mainly three classes of heirs (a) sharers, (b) residuaries and (c) distant kindred. In addition to these heirs, heirs may be-(i) successors by contract, (ii) acknowledged kinsmen, (iii) universal legatees, and (iv) Bait- ul-mal, (Public Treasury) who succeed in the order named.

 

Shia Law.-Shia law divides heirs into two classes (i) heirs byconsanguinity, and (ii) heirs by marriage.

 11. The uterine relation.-Uterine relationship does exist in Muslim Law.

 

12. The principles of distribution of Specific Share among a number of heirs of the deceased and that of the male getting double the share of the female of the same degree is prevalent in the Muslim Law.

 

Q. 12 (b). Who are sharers? Point out the general rules for ascertaining shares of sharers.

OR

Discuss the position of Quranic heirs in Hanafi and Shia Law of Muslim inheritance.

 

Classification of heirs under Hanafi Law

 

The heirs according to Sunni Hanafi Jurists have been divided into the following categories-

 

I. Principal classes.

II. Subsidiary classes.

 

I. Principal classes.-The heirs of principal classes are as under-

(1)  Class –I-Quranic heirs (Sharers)

A sharer means who has been provided a share by Quran. They are also called “Ashab-al-Faraiz”. Quranic heirs are the heirs whose shares are fixed by the Holy Quran. Traditions of the Prophet or Consensus of the Community, and are to be paid their shares first out of the deceased person's death.

(2)  Class-II--Agnatic heirs (Residuaries)

Agnates means a person whose relation to deceased can be traced without intervention of female link.

The agnatic heirs are basically of two kinds, agnates by blood and agnates for specific reasons, but there are now no agnates for special reasons; and agnates by blood are further divided into various classes.

Agnatic heirs are the heirs who are specified as such in the Quran or the Hadith but not with any fixed shares; they instead get what remains after paying the fixed shares of the Quranic heirs, or in their absence inherit the full estate.

(3) Class-III- Uterine heirs (Distant kindred)(dhawul-arham)

Uterine Heirs are the deceased person's relatives not being his Quranic or agnatic heirs and become his heirs if the deceased has left behind no Quranic or agnatic heir, or none of them except the surviving spouse.

II. Subsidiary classes-

 

(1)  Class-IV--The successors by contract.

In law, as a result of a contract subject to some special conditions known in the shariat as aqd-e-muwalat. If a person tells another "You are my friend and if ever in my life I become legally bound to pay a compensation, etc., it will be obligatory for you to pay it and after my death you will inherit my estate: and the other person agrees to it, as a result of this contract a special kind of relation is created between the two which in shariat is called relationship-in-law, while the person so designated as an heir is known as the 'contractual heir' or 'successor by contract'.

 

By the shariat law, next to uterine heirs the estate goes to the contractual heir but such entitlement is now a rare and exceptional possibility. However, if there is such an heir, in the absence of all Quranic, agnatic or uterine heirs the estate will go first to a contractual heir.

(2)  Class-V-The acknowledgement of kinsman.

Acknowledged Kinsman is a person acknowledged by the deceased as his or his father's brother, if he stuck to the acknowledgment till his death. By the shariat Law, next to uterine heirs the estate goes to the contractual heir and in his absence to the acknowledged kinsman, but such entitlement is now a rare and exceptional possibility. However, if there is such an heir, i.e. the acknowledged kinsman, in the absence of all Quranic, agnates or uterine heirs and the contractual heir, the estate will go to acknowledged kinsman.

(3) Class-VI-The sole legatee.

The Sole or universal legatee i.e., the person to whom the deceased has bequeathed all his property and who will get it if there be none of the aforementioned heirs; and the same will not go to the State.

(4) Class-VII-The state by escheat.

If none of those entitled to inherit be there, the estate will go to the Bail-ul-Mal (Public treasury) set up in accordance with the principles of the shariat and if there is no such Bail-ul-mal it will go to the surviving spouse.

Hanafi Law-List of Sharers (Quranic heirs)

1. Father. The normal share of father is 1/6 when there is a child or child of a son how-low-so ever. When there is no child or child of a son , the father inherit as a residuary.

2. True grand-father.-The normal share of true grand-father is 1/6 when there is a child or child or a son . and no father or nearer true grand-father. When there is no child or child of a son . the true grand-father inherits as a residuary, provided there is no father or nearer true grand-father.

3. Husband.-The normal share of husband is 1/4 when there is a child or child of a son. He inherits 1/2 when there is no child or child of a son .

 

4. Wife. The normal share of wife is 1/8 If there are more than one wife, all wives collectively inherit 1/8 . She inherits 1/4 when there is no child or child or a son .

 

5. Mother. The normal share of mother is 1/6 ,

 (a) when there is a child or child of a son ., or

(b) when there are two or more brothers or sisters or even one brother and one sister, whether full, consanguine or uterine.

Mother inherits 1/3 when there is no child or child of a son . and not more than one brother or sister (if any), but if there is also a wife or husband and the father then only 1/3 of what remains after deducting the wife's or husband's share.

6. True grand-mother.-The normal share of true grand-mother if there is one is 1/6 if there are more than one 1/6 collectively.

 

A. Maternal true grand-mother inherits when there is no mother, and nearer true grand-mother, either paternal or maternal.

B. Paternal true grand-mother inherits when there is no mother, no father, no nearer true grand-mother either paternal or maternal and no intermediate true grand-mother,

 

7. Daughter.-Daughter if one, inherits 1/2 If there are more than one daughter, they collectively inherit 2/3 . Daughter inherits as a sharer if there is no son. When there is son, she inherits as a residuary with the son.

 

8. Son's daughter.-If one, she inherits 1/2 if two or more, all of them inherit collectively 2/3 when there is no (1) son, (2) daughter, or (3) higher son's son, (4) higher son's daughter, or (5) equal son's son. When there is only one daughter, or higher sons daughter but: no (1) son, (2) higher son's son or equal so n’s  son, the daughter or higher son's daughter takes 1/2 and the son's daughter ., (whether one or more) take 1/6 [ i .e.,2/3 of 1/2 ] .

 

With an equal son's son she becomes a residuary.

 

9. Uterine brother, or Uterine sister.-Uterine brother or uterine sister inherits 1/6 (if one); 1/3 (if more than one), when there is no : (1) child, (2) child of a son , (3) father, (4) true grandfather.

 

10. Full sister.-Full sister inherits 1/2 (if one); 2/3 (if more than one), when no: (1) child, (2) child of a son ., (3) father, (4) true grandfather, or (5) full brother with the full brother she becomes a residuary.

 

11. Consanguine sister.-Consanguine sister inherits 1/2 (if one); 2/3 (if more than one), when there is no: (1) child, (2) child of a son , (3) father, (4) true grandfather, (5) full brother, (6) full sister, or (7) consanguine brother.

 

But if there is only one full sister and she succeeds as a sharer, the consanguine sister (whether one or more) will take 1/6 provided she is not otherwise excluded from inheritance.

 

With the consanguine brother she becomes a residuary.

 

According to Hanafi school, the property of a deceased Muslim, goes to:

 

1. In first instance to the 'quranic-heirs' or the heirs of the class I,

2. If the property is not exhausted after distribution in the heirs of above class I, or if they are not available, it will go to the Agnatic heirs i.e., heirs of class II.

3. In the absence of heirs of above class I, or class II, the property of the deceased will go to the uterine heirs i.e., heirs of class III.

4. The heirs of classes I, II and III are those heirs who belong to the deceased by blood-relations whether they are agnates or cognates or husband and wife.

5. The subsidiary heirs succeed only by way of exception.

 

Classification of heirs under Shia law

 

The classification of heirs, according to Shia law, is as under-

(1) Blood Relations - The blood relations are either-

(a) Quranic heirs, or

(b) Agnates or cognates,

They are further divided into the following classes for the purpose of inheritance:

Class 1-(i) Parents.

(ii) Children and lineal descendants how low so ever.

Class II (1) Grand parents how high so ever.

(ii) Brothers and sisters and their descendants.

Class III-(i) Paternal uncles or aunts.

(ii) Maternal uncles and aunts, grand parents of deceased and their descendants how low so ever.

 

The Koranic heirs are of the following two kinds-

(1) By Affinity

 

1. Husband - He inherits 1/2 or 1/4

2. Wife - She inherits 1/4 or 1/8 singly or jointly.

 

(2) By consanguinity

 

1. Father (i) He takes 1/6 , if there are no descendants.

(ii) When no descendants he takes as Quranic heir.

2. Mother --She inherits 1/3 or 1/6

3. Daughter-She inherits 1/2 or jointly 2/3 as Quranic heir or with son as agnate.

4. Full Sister-She takes 1/2 or jointly 2/3 with brother she inherits as blood relation.

5. Consanguine Sister-She takes 1/2 or jointly 2/3 with consanguine brother, inherits as blood relation.

6. Uterine brother or sister - takes 1/6 or jointly and equally 1/3

 

The following are considered as Quranic heirs according to Sunni law but Shia law does not recognise them as Quranic heir:

 

(1) Son's daughter how low so ever, (2) True grand-father, and (3) True grand-mother how high so ever.

Shia law of inheritance is simple. The shares are first of all assigned to the spouse i.e., Husband and Wife and than proceeds for the claim of shares of other.

Shia Law- List of Sharers (Quranic heirs).-Under Shia Law, the sharers or Quranic heirs are as follows:

 

1. Husband-Husband gets 1/4 if there is a lineal descendant. If there is no lineal descendant, he gets 1/2

 

2. Wife.-Wife gets 1/8 (if more than one, all of them collectively get 1/8 ) when there is a lineal descendant, if there is no such descendant, she gets (or all of them collectively get) 1/4

 

3. Father.-Father gets 1/6 when there is a lineal descendant; if there be no lineal descendant, the father inherits as a residuary.

 

4. Mother.-Mother gets 1/6 when there is a lineal descendant or when there are two or more full or consanguine brothers or one such brother and two such sisters or four such sisters with the father. In other cases she gets 1/3

 

5. Daughter. When there is only one daughter and there is no son, the daughter gets 1/2 when there are more than one daughter and there is no son, all of them collectively get 2/3 . With the son, she takes as a residuary.

 

6. Uterine brother/uterine sister.-Uterine brother/uterine sister gets 1/6 , when there is no parent or when there is no lineal descendant. In case of more than one uterine brother uterine sister, all of them get collectively 2/3 .

 

7. Full sister.-Ful! sister gets 1/2 when there is no parent, or lineal descendant or full brother or father's father. If there are more than one all of them collectively get 2/3

 

The full sister takes as a residuary with the full brother and also with the father's father.

 

8. Consanguine sister.-Consanguine sister gets 1/2 when there is no parent or lineal descendant or full brother or sister or consanguine brother or father's father. If there are more than one, all of them collectively get 2/3

 

The consanguine sister takes as a residuary with the consanguine brother and also with the father's father.

Q. 12 (c). Discuss the grounds of disqualification from inheritance under Muslim Law. Is there any difference in this regard under Sunni and Shia Law? Explain with the help of case law.

Grounds of 'Total Exclusion' Recognised by Sunni Law of Inheritance

 

'Exclusion' here denotes total, not partial exclusion. Any person, including a child in the womb provided it is born alive, is entitled to inherit, unless there is a specific rule of exclusion.

Exclusion may be either imperfect or perfect. Imperfect exclusion means exclusion from one share and admission to another. For example, a sister by herself is a Koranic Heir, but by the co-existence of a brother, she may be excluded as a Koranic Heir and admitted as an Agnatic Heir.

As to perfect exclusion, there are two sets of persons who inherit:

 (1) the primary heirs, who are never excluded, they are the husband or wife, the father and the mother, the son and the daughter; these heirs exclude, others on occasions, but are themselves never excluded;

 (ii) all the other heirs, each of whom may be excluded by some one else. For example, the brother is an heir; but he may be excluded either by the son or by the father.

The term 'perfect' exclusion applies to cases where although a person is related to the propositus and is otherwise entitled to inherit, there is some legal cause which excludes him and the most important of these are difference of religion, homicide, slavery and illegitimacy.

 

The Sirajiyah sets out four grounds of exclusion from inheritance:

 

(i)                  homicide,

(ii)                 slavery,

(iii)               difference of religion, and

(iv)                difference of allegiance.

 

Slavery was abolished by Act V of 1843 and therefore it is no more an impediment to inheritance. The impediment of difference of religion has also been removed by Caste Disabilities Removal Act (the Act XXI of 1850). The bar of difference of allegiance is also not recognised in India.

 

Thus out of four grounds cited above only homicide is recognised as a ground of exclusion.

 

Homicide as a ground of exclusion.-Under Sunni Law a person who caused the death of another, whether-

 

(i) intentionally, or

 

(ii) by mistake, or

 

(iii) by negligence, or

 

(iv) by accident,

 

is disqualified from succeeding to the estate of that another.

 

According to Sirajiyah, descendants of the murderer are not excluded but according to Lahore High Court the descendants of murderer are also excluded from succession.

 

In Shia Law, homicide is not a bar to succession unless the death was caused intentionally.

 

Exclusion by Statute.-According to Watans Act of Bombay if a Muslim watandar dies leaving a widow, a daughter and a paternal uncle, the daughter is not entitled under the Act to any interest in the watan lands, she being postponed in the order of succession.

 

Exclusion by Custom.-Among the Lubbais of Coimbatore District, the daughters are excluded by the son. Among the Gujars and Bakkerwals of Nunar the custom is that daughters do not inherit even if they remain at home. In default of agnates only they can succeed the property.

 

Exclusion on account of Illegitimacy.-Under Sunni Law, an illegitimate child is affiliated to its mother and would inherit her and her relations in the absence of legitimate issue. But it cannot inherit from its putative father or his relations.

 

Illustration

 

A Muslim female of Sunni sect dies leaving a husband and an illegitimate son of her sister. The husband will take 1/2 and sister's son, though illegitimate, will take the other 1/2 as a distant kinsman, being related to the deceased through his mother.

 

Under Shia Law, the illegitimate child can neither inherit to its mother nor to its father.

Physical and mental defects and unchastity are no grounds of exclusion in Sunni or Shia Law.

 

Differences regarding disqualification from inheritance under Sunni and Shia Law.-As regards differences between Sunni and Shia law with respect to disqualification from inheritance, the following points are noteworthy:-

 

1. Under the Sunni law, a person, who has caused the death of another is disqualified from inheriting the property of the person killed, whether the homicide of the deceased was committed intentionally or accidentally. Under the Shia law, only intentional homicide leads to the exclusion from inheritance.

 

2. Under the Sunni law, an illegitimate person is disqualified from inheriting the property of the father, but he is not disentitled from inheriting the property of the mother. Under the Shia law, an illegitimate person cannot inherit the property of any of his parents.

 

3. Under the Shia law, only the eldest son who is of sound mind, is entitled to the dresses of the father, and to his sword, Quran and ring, provided the father has left behind him other property besides these articles. There is no such rule under the Sunni law.

 

4. Under the Sunni law a childless widow has the same right of inheritance which a widow having the child enjoys. However, under the Shia law, a childless widow is not entitled to inherit her husband's lands, and she is only entitled to 1/4 th share in value of her husbands movable property including trees and buildings- Baillie II 295: Mir Ali v. Sajuda Begum, (1897) 21 Mad 27, Syed Ali v. Syed Mohammad, (1928) 7 Pat 426.