Legal Succession Notes

LEGAL SUCCESSION
Legal or Intestate succession takes place when a

person dies without a will or under a void or
inefficacious will or if no one takes a benefit under his
will. In these cases, since there are no testamentary
heirs chosen by the deceased to succeed, the persons
designated by law succeed to the inheritance.
In civil law, we take into consideration,
natural love, affection and blood relationship
and the law presumes that had the deceased
made a will he would have disposed of his
property, just as provided by law. That is, he
would have left it first to his descendants, then
his ascendants and lastly to his collateral
relatives. In other words, civil law, recognizes
the fact that normally a man’s affection first
descents to his children, then ascends to his
parents and ascendants and finally spreads to
his collateral relatives.
In Islamic law, on the other hand
presumption is based, not on love,
affection and blood alone, but on
Responsibility, love and blood. Hence,
in Islamic law, property first goes to
the surviving spouses who normally
takes care or be responsible for the
children, then it goes to Ascendants
who invariably are responsible for the
welfare of the deceased and therefore
for the benefits of the deceased’s loved
ones and thereafter spreads it to the
other relatives.
MUSLIM JURISTS OPINIONS ON INHERITANCE:

GALWASH
POINTS OF CONTACT:
“A Muslim upon his death may leave behind him a

numerous body of relations. In the absence of certain
determinate rules, it would be extremely difficult to
distinguish between the inheriting and the non-
inheriting relations. In order to obviate this difficulty
and to render it easy to distinguish between the two
classes, it is the general rule and one capable of
universal application, that when a deceased Muslim
leaves behind him two relations, one of whom is
connected with him through the other, the former
shall not succeed while the intermediate person is
alive. For example, if a person on his death leaves
behind him a son and son’s son, this latter will not
succeed to his grandfather’s estate while his father is
alive. Again if a person dies leaving behind him a
brother’s son and a brother’s grandson and his own
daughter’s son, the brother’s son, being a male
agnate and nearer to the deceased than the brother’s
grandson, takes the inheritance in preference to the
others.”
The law of inheritance is a science acknowledged
even by Muslim doctors to be an exceeding difficult
object of study.
Although it is not easy to follow it out in all its

intricacies, a carefully drawn table on the Sunni Law
of inheritance is given hereinafter:
A.Legal Heirs and Sharers
1.FATHER
As mere sharer, when there is a son or a son’s

son, how low soever, he takes 1/6.
As mere residuary, when no successor but himself,
he takes the whole: or with a sharer, not a child or
son’s child, how low so ever, he takes what is left by
such sharer.
As sharer and residuary, as when there are
daughters and son’s daughter but no son or son’s son,
he, as sharer, takes 1/6; daughter takes ½, or two
more daughters 2/3; son’s daughter 1/6; and father
the remainder as residuary.
2.TRUE GRANDFATHER:
Father’s father, his father and so forth, into whose

line of relationship to the deceased no mother enters,
is excluded by father and excludes brothers and
sisters; he comes into father’s place when no father;
but does not, like father, reduce mother’s share to 1/3
of reside, nor entirely exclude paternal grandmother.
3.HALF BROTHERS BY SAME MOTHER:
They take, the absence of children or son’s

descendants and father and true grandfather one 1/6,
two or more between them 1/3, being those who
benefit by the “return”.
4.DAUGHTERS:
When there are no sons, daughters take one ½;

two or more 2/3 between them; with sons they
become residuary and take each half son’s share,
being in this case of those who benefit by the
“return.”
5.SON’S DAUGHTERS:
They take as daughters when there is no child;

take nothing when there is a son or more daughters
than one; take 1/6 when only one daughter; they are
made residuaries of male cousin, how low so ever.
6.MOTHER:
The mother takes 1/6 when there is a child or

son’s child, how low soever, or two or more brothers
or sisters of whole or half blood; she takes 1/3 when
none of these; when husband or wife and both
parents, she takes 1/3 of the remainder after
deducing their shares, the residue going to father; if
no father but grandfather, she takes 1/3 of the whole.
7.TRUE GRANDMOTHER:
Father’s or mother’s mother, how high soever,

when no mother, she takes 1/6; if more than one 1/6
between them. Paternal grandmother is excluded by
both father and mother; maternal grandmother by
mother only.
8.FULL SISTERS:
These take as daughters when no children, son’s

children how low soever, father, true grandfather or
full brother; with full brother, they take half share of
male; when daughters or son’s daughters, how low
soever, but neither sons, nor son’s nor father, nor true
grandfather, nor brothers, the full sisters take as
residuaries what remains after daughter or son’s
daughter has had her share.
9.HALF SISTERS BY SAME FATHER:
They take as full sisters, when there are none,

with one full sister they take 1/6; when two full
sisters, they take nothing, unless they have a brother
who makes them residuaries and then they take half a
male’s share.
10. HALF SISTERS BY MOTHER ONLY:
When there are no children or son’s children, how

low soever, or father or true grandfather, they take
one 1/6; two or more 1/3 between them.
11. HUSBAND:
If no child or son’s child, how low soever, he takes
1/2; otherwise ¼.
12. WIFE:
If no child or son’s child how low soever, she takes

¼; if otherwise, 1/8. Several widows share equally.
COROLLARY:
All brothers and sisters are excluded by son, son’s

son, how low soever, father or true grandfather. Half
brothers and sisters on father’s side are excluded by
these and also by full brothers. Half brothers and
sisters on mother’s side are excluded by any child or
son’s, by father and true grandfather.
B.Residuaries
Residuaries in their own right, being males into

whose line of relationship to the deceased no female
enters:
(a) Descendants
1.Son,
2.Son’s son,
3.Son’s son’s son,
4.Son of No. 3
(4a) Son of No. 4
(4b) And so on how low soever.
(b) Ascendants
5. Father
6. Father’s father
7. Father of No. 6
8. Father of No. 7
(8a) Father of No. 8
(8b) And so on how high soever
(c) Collaterals
9. Full brother
10. Half brother by father
11. Son of No. 9
12. Son of No. 10
(11a) Son of No. 11
(12a) Son of No. 12
(11b) Son of No. 11e
(12b) Son of No. 12a
And so on how low soever
13. Full paternal uncle by father
14. Half maternal uncle by father
15. Son of No. 13
16. Son of No. 14
(15a) Son of No. 15
(16a) Son of No. 16
17. Father’s half paternal uncle by father’s
side
18. Father’s half paternal uncle by father’s
side
19. Son of No. 17
20. Son of No. 18
(19a) Son of No. 19
(20a) Son of No. 20
And so on, how low soever
21. Grandfather’s full paternal uncle by
father’s side
22. Grandfather’s half paternal uncle by
father’s side
23. Son of No. 21
24. Son of No. 22
(23a) Son of No. 23
(24a) Son of No. 24
And so on, how low soever
NOTES:
a. A nearer residuary in the above table is

preferred to and excludes a more remote
residuary.
b. Where several residuaries are in the same
degree, they take per capita not per stripes,
i.e. they share equally. The whole blood is
preferred to and excluseds the half blood at
each stage.
II. Residuaries in another’s right, being certain

females, who are made residuaries by males parallel
to them; but who, in the absemce of such males, are
only entitled to legal shares. These female residuaries
take each half as much as the parallel male who
makes them residuaries. The following four persons
are made residuaries:
(a) Daughters made residuary by son.
(b) Son’s daughter made residuary by full brother.
(c) Full sister made residuary by full brother
(d) Half sister by father made residuary by her
brother
III. Residuaries with another, being certain

females who become residuaries with other females.
These are:
(a) Full sisters with daughter’s sons.
(b) Half sisters with father
NOTES:
When there are several residuaries of different or

classes, e.g., residuaries in their own right and
residuaries with another, proper inquity to deceased
gives a preference, so that the residuary with another,
when nearer to the deceased than the residuary in
himself, is the first.
If there is residuaries and no sharers, the
residuaries take all the property.
If there be sharers and no residuaries, the sharers
take all the property by the doctrine of the “return”.
Seven persons are entitled to the “return”. 1 st,
mother; 2nd, grandmother; 3rd, daughter; 4th, son’s
daughter; 5th, full sister; 6th, half sister by father; 7th,
half brother or sister by mother.
A posthumous child inherits. There is no
presumption as to commorients, who are supposed to
die at the same time unless there be no proof
otherwise.
If there be neither sharers no residuaries, the
property will go to the following class (distant
kindred).
C. Distant Kindred
(All relatives who are neither Sharers no
Residuaries)
CLASS 2. Descendants: Children of daughters and
son’s daughters:
1. Daughters son
2. daughter’s daughter
3. Son of no. 1
4. Daughter of No. 1
5. Son of No. 2
6. Daughter of No. 2 and so how low soever and
whether male or female
7. Son’s daughter’s son
8. Son’s daughter’s daughter
9. Son of no. 7
10. Daughter of No. 7
11. Son of No. 8
12. Daughter of No. 8, and so on how low soever,
and whether male or female.
NOTES:
(a) Distant kindred of Class 1 take according to

proximity of degree; but when equal in this
respect, those who claim through an heir, i.e.,
sharer or residuary, have a preference over
those who claim through one who is not an
heir.
(b) When the sexes of their ancestors differ,
distribution is made having regard to such
difference of sex, e.g., daughter’s daughter,
and when the claimants are equal in degree
but different in sex, males take twice as much
as females.
CLASS 2. Ascendants: False grandfathers and false

grandmothers.
13. Maternal grandfather
14. Father of No. 13, father of No. 14 and so on
as high soever (i.e., all false grandfathers)
15. Maternal grandfathers mother.
16. Mother of No. 15 and so on how high soever
(i.e., all false grandmothers).
NOTES: Rules (a) and (b), applicable to Class 1,
apply also to Class 2.
Furthermore, when the sides of relation differ,

the claimant by the paternal sides gets twice as
much as the claimant by the maternal side.
CLASS 3. Parents Descendants:

17. Full brother’s daughter and her
descendants.
18. Full sister’s son
19. Full sister’s daughters and their
descendants, how low soever.
20. Daughter of half brother by father, and her
descendants
21. Son of half sister of father
22. Daughter of half sister by father, and her
descendants, how low soever
23. Son of half brother by mother
24. Daughter of half brother by mother, and her
25. Son of half sister by mother
26. Daughter of half sister by mother, and their
NOTE: Rules (a) and (b) applicable to Class 1, apply

also to Class 3.
Furthermore, when two claimants are equal in

respect of proximity, one who claims through a
residuary is preferred to one who cannot so claim.
CLASS 4. Descendants of the two grandfathers and

the two grandmothers
27. Full paternal aunt and her descendants,
male or female, and how low soever.
28. half paternal aunt and her descendants,
male or female, and how low soever.
29. Father’s half brother by mother and his
descendants, male or female, how low soever.
30. Father’s half sister by mother and her
descendants, male or female, how low soever:
NOTE: The sides of relations being equal, uncles

and aunts of the whole blood are preferred to
those of the half, and those connected by the
same father only, whether males or females,
are preferred to those connected by the same
mother only. Where sides of relation differ, the
claimant by paternal relation gets twice as
much as the claimant by maternal relation.
Where sides and strength of relation are
equal, the males get twice as much as the
female.
GENERAL RULE: Each of those classes as above

mentioned excludes the next following class.
NOTE: In cases where there are no shares,

residuaries, or distant kindred to claim
inheritance, the whole property of the
deceased shall be gone over to the Public
Treasury, i.e., The State.
From the above annotations, in consonance with

the provisions of the Muslim Code, particularly
Articles 110 to 132 inclusive, let us discuss
four (4) significant factors:
(1) The twelve shares and the Summary of

their quaranic or fixed shares Moh. Ali, p.
101-111;
(2) Residuaries and Distant kindred (Rashid,
p. 260-263);
(3) Rules on Exclusion (Rashid, p. 237-239);
(4) Computation of Shares (kayfiyatu)
(A) Root of the problem;

(B) Doctrine of correction;
(C) Doctrine of increase (Aul); (Hanafi, p.
250, Shia p. 274);
(D) Doctrine of return or “Radd” (Shia, p.
251-273);
(E) Double inheritance.
THE TWELVE (12) SHARERS AND SUMMARY OF

THEIR QUARANIC OR FIXED SHARES
There are 12 persons who inherit as sharers –

four (4) males and eight (8) females. The (4)
males are (a) Husband; (b) Father; (c) True
grandfather ( no female relative intervenes like
mother’s father but only father’s father, father,
father’s father’s father; (d) Half brother (by
mother or uterine) the eight (8) females are (a)
Wife; (b) mother; (c) true grandmother (no false
grandmother intervenes like mother’s father but
only mother’s mother father’s mother or father’s
father’s mother; (d) daughter; (e) son’s daughter;
(f) full sister; (g) half-sister by father or
consanguine and (h) half-sister by the mother or
uterine.
The summary of sharers are as follows:
(1) ½ share – five persons
(A) Husband when wife left no son;

(B) Daughter, when alone;
(C) Son’s daughter, when alone and no
daughter of the loins;
(D) Full sister, when alone;
(E) Half-sister, consanguine or by father and
no full sister.
(2) ¼ share – Two Persons
(A) Husband – when wife left a child;

(B) Wife – when husband has left no child nor
child of a son;
(3) 1/8 shares – One person
(A) Wife – when husband left a child or child

of a son,
(4) 2/3 shares – four persons.
(A) Two or more daughters of the loins;

(B) Two or more daughters of the son when
there is none of the loins;
(C) Two or more full sisters;
(D) Two or more half sisters by consanguine if
there is no full sisters.
(5) 1/3 shares – Two persons.
(A) Mother, when decedent left no child of a

son or brother or sister;
(B) Mother’s child, two or more children of a
mother whether male or female;
(6) 1/6 shares – Eight (8) persons
(A) Father – when decedent left a child or

child of a son;
(B) True Grandfather – when in the absence of
the father;
(C) Mother – when decedent left a child, child
of a son, two brothers or sister;
(D) True Grandmother – when in the absence
of the mother;
(E) Son’s daughter – when co-existing with
daughter or loins;
(F) One mother’s child – whether male or
female;
(G) Half-sister (consanguine or by father)
When co-existing with full sister if there is no

consanguine brother (his brother) who child
exclude her. If she co-exists with two or more full
sisters she takes nothing, unless there is a
consanguine brother (blessed brother) with her.
(H) Uterine sister (when alone and not
excluded).
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II. RESIDUARIES AND DISTANT KINDRED
Residuaries, on the other hand are persons for

whom no share has been fixed and who take
residue (remainder) after the shares have been
satisfied. There are three (3) classes of
Residuaries, namely:
1) Residuaries in their own right:
(A) Male descendants of the deceased in the
direct line (no female enters) example: son,
son’s son, son’s son, etc.;
(B) Male’s ascendants’ in direct line. For
example, father’s father; father’s father’s
father, etc.;
(C) Full blood or consanguine brothers of
descendent and their male descendants,
how ever distant. For example, full brothers,
half brothers by fathers, son of full brothers
and son of half-brother by father.
(D) Full blood or consanguine paternal uncles
of descendant and their male descendants.
For example, paternal uncle, half-paternal
uncle, etc.
All relatives who are neither sharers nor
residuaries are distant kindred, in four
classes already enumerated.
INHERITANCE:
“ The reform introduced by Islam into the
rules relating to inheritance is twofold: it makes the
female a co-sharer with the male, and divides the
property of the deceased person among his heirs on a
democratic basis, instead of handling it all over to the
eldest son, as is done by the law of primogeniture.
The Arabs had a very strong tradition that he alone
could inherit who amites with the spear, and therefore
they did not give any portion of inheritance to such of
the heirs as were not capable of meeting the nemy
and fighting in battles (IJ-C. IV, p. 171). Owing to this
tradition, which strongly appealed to people among
whom tribal fighting was carried on day and night not
only were all females-daughters, widows and mothers
excluded, but even male minors had no right to
inheritance. Woman, in fact, was looked upon as part
of the property of the deceased (4:19); and therefore
her right to property by inheritance was out of the
question.
Even in the Jewish law she had no better position:
“there could have been no question in those days of a
widow inheriting from her husband, since she was
regarded as part of the property which went over to
the heirs. Nor could there have been a question about
daughters inheriting from their father, since
daughters were given in marriage either by their
father, or by their bothers or other relatives after the
father’s death, thus becoming the property of the
family into which they married.
“Islam came as the defender of the weaker sex
and the orphans, and just when a defensive war
against the whole of Arabia was being which gave the
whole of the property to those members of the family
who bore arms, was declared to be unjust and a new
law was given which put widows and orphans on a
level of equally with those who fought for the defense
of the tribe and the country. When the change was
first introduced, some of the companions thought it
very hard and complained to the Holy Prophet saying
that they were required to make over half the
property to a daughter who did not ride on horse-back
or fight with the enemy (IJ-C. IV, p. 171). The general
principle of inheritance is first laid down in the
following words: “Men shall have a portion of what
the parents and the near relatives leave, and women
shall have a portion of what the parents and near
relatives leave, whether there is little or much of it
(4:7).
“The law of inheritance is then stated in the
following words:
“Allah enjoins you concerning your children: the
male shall have the equal of the portion of two
females; but if there are more than two females they
shall have two-thirds of what he has left, and if there
is one, she shall have the half; and as for his parents,
each of them shall have the sixth of what he has left,
if he has a child; but if he has no child and only his
two parents inherit him, then his mother shall have
the third; but if he has brothers, then his mother shall
have the sixth, after the payment of any request he
may have bequeathed, or a debt. . . and you shall
have half of what you shall have a fourth of what
child, but if they have a child, then you shall have a
fourth of what they leave after payment of any
bequest they may have bequeathed or a debt, and
they shall have the fourth of what you leave if you
have no child but if you have a child then they shall
have the eight of what you leave after payment of any
bequest you may have bequeathed or a debt; and if a
man or a woman, having no children, leaves
inheritance and he (or she) has a brother or a sister,
then each of these two shall have the sixth, but if they
are more than that, they shall be sharers in the third
after payment of any bequest that may have been
bequeathed or a debt that does not harm others
(4:11:12)
“Allah gives you decision concerning the person
who has neither parents nor offspring; if a man dies
and he has no son and he has a sister, she shall have
half of what he leaves, and he shall have two-thirds of
what he leaves; and if there are brethren, men and
women, then the male shall have the like of the
portion of two females (4:177).
“The persons spoken of in these verses, as
inheriting the property of the deceased, may be
divided into two groups, the first group consisting of
children, parents and husband or wife, and the second
consisting of brothers and sisters. All the persons
mentioned in the first group are immediate sharers,
and if all three of them are living, they have all of
them a right in the property, while the members of the
first second group only inherit if all of some of the
members of the first group are wanting. Both groups
are capable of further extension; as for instance
grandchildren, or still lower descendants, taking the
place of children; grandparents, or still higher
descendants, taking the place of children;
grandparents, or still higher descendants, taking the
place of parents; and uncles, aunts and other distant
relatives taking the place of brothers and sisters.
“Among the members of the first group, children
are mentioned first, then parents, and then husband
or wife, and that is the natural order. In the case of
children only a broad principle is laid down-the male
shall have double the share of the female. Thus, all
sons and all daughters would be equal sharers, the
son however having double the share of the daughter.
Another example of apparent inequality of share of
treatment of the two sexes is that in which a man
leaves only female issue. If there is only one daughter,
she takes half of the property, if there are two or
more daughters they take two-thirds of the whole the
residue going to the nearest male members,
according to a hadith quoted further on. The reason
for this is not far to seek. Man is generally recognized
as the bread-winner of the family, and that is the
position assigned to him in the Holy Quran. Keeping in
view his greater-responsibilities, it is easy to see that
is entitled to a greater share, and therefore the Holy
Quran has assigned to him double the share of the
female. In fact, if the responsibilities of the two sexes
are kept in view. There is real justice and real equality
beneath this apparent inequality.
“if there are no other members of the first group
besides the children, the whole property will be
divided among the latter, but
if there are other members, hen evidently the
children take the residue, because the share of the
other members are fixed, one-sixth in the case of each
parent and one-fourth or one-eight in the case of the
husband and wife.
“Children’s children and lower descendants are,
as is usual in the language of the Holy Quran, included
among the children, but the basic of division will still
be the immediate descendants. Thus if there are
grandsons, they will take the shares of their
respective fathers. The case in which there are sons
and grandsons should be treated on a similar basis,
but here the jurists make a distinction, treating the
grandsons as the remoter relatives and therefore not
entitled to any inheritance, so long as there is a son.
Again a son’s daughters, where there is no son, are
treated by the jurists, not as taking the place of that
son who, if alone, would have taken all the property,
but as the daughters of the deceased, taking one-half
in case of a single daughter and two-thirds in case
there are two or more. But curiously enough, son’s
daughter when co-existing with one daughter of the
deceased is considered as a sharer in inheritance, the
two being treated together as two daughters of the
deceased. The words of the Holy Quran may however
be interpreted in a manner which will avoid all such
inconsistencies. The issue of son or daughter would
take place of their father or mother, and would take
what their father or mother would have taken if alive.
Suppose a person has one daughter only, who is dead
at the time of the death of her father, but who got
children; these would take the share of their mother,
i.e., one-half of the property. Again, suppose there are
several children, some of whom are dead and have
left issue behind them, while others are alive. It is
only an equitable principle that the issue of the dead
offspring should take the place of their parents, and
that is also the natural interpretation of the words of
the Holy Quran. Moreover if this interpretation is
adopted, the law of inheritance becomes very simple
and free from all the complication and inconsistencies
which juristic reasoning has in some cases introduced
into it. All that is traceable to the Holy Prophet in case
is only a broad principle;” Give the fixed portions
(faraidz) to those who are entitled to them, and what
remains should go to the nearest male” (Bu.85:6).
This Hadith does not show at all the grandson is not
entitled to inheritance, if there is a son living; through
it is on that the juristic principle of excluding the
grandsons is based. The application of the Hadith may
be illustrated by an example. A man dies leaving two
parents and one daughter. The parents will get one-
third; one-half of the residues will go to the daughter
and the remaining half will revert to the father who is
the nearest male relative. The selection of the nearest
male is based on a principle of equity, because it is he
who is required to maintain the family.
“The case of the parents is taken after that of
children, each of the parents taking a sixth, if the
deceased has children. It is clear from this statement
that after the parents have taken one-sixth each, the
residue will go to the children and this residue will
divided among them, as laid down above, equally, the
son taking double the share of the daughter. If
however the deceased leaves only daughters, one-half
of the residue shall go to a single daughter, and two-
third’s to two or more than two daughter, and what
remains shall go to the nearest male relative,
according to the hadith quoted above. If the father or
mother is not alive, the grandfather or grandmother
shall take his or her place.
“The second case in which parents inherit from a
deceased person, is that in which the deceased leaves
no issue. In this case it is said that if the parents are
the only heirs, that is there is a neither a husband or a
wife, nor brothers and sisters, the mother takes one-
third, the remaining two-third evidently going to the
father. But if the deceased has no issue but has no
brothers (or sisters), the mother shall receive only
one-sixth. It is not here stated what the father shall
get or what the brothers and sister shall be. The
prevalent view is that the presence of brothers
reduces only the mother’s share; the remaining five-
sixths going to the father. Though, even in this case,
the brothers and sisters, if dependent on the father,
will benefit by the increased share, yet it seems more
reasonable that when the share of the mother is
decreased on account of the presence of brothers and
sisters, the latter should be entitled to a share in the
property in their individual capacity.
“The latter part of v.4:12 lends support to this
view, where after specifying portions of the husband
and wife, it is added: “And if a man or a woman having
no children (kalala) leaves inheritance, and he (or
she) has a brother or sister, then each of them shall
have the sixth, but if there are more that, they shall
sharers in the third.” The kalala is spoken of here as
well as in v.4:177, where the brothers and sisters take
the whole property. The explanation generally
adopted is that the brothers and sisters spoken in
v.4:12 are uterine, while those spoken of v.4:177 are
full or consanguine. But there are strong reasons for
the view that the kalala spoken of in the two laces
carries a different significance; for while kalala is
generally explained by lexicologist as meaning one
has neither children nor parents, according to the
Caliph ‘Umar and Ibn ‘Abbas it is also means one who
has no children simply (IJ-C. IV, p. 177; VI, p. 25). Now
in v. 4 11, the Holy Quran speaks of an issue less
person who has parents as well as brothers or sisters,
but thus not speaks of the shares of these brothers or
sisters. The conclusion is evident that the shares of
these brothers and sisters have been mentioned
elsewhere. In fact what has been left unexplained in v.
11 has been fully explained in v. 12, and the case of
kalala there, is the case of the inheritance of the
person who has no children but who has parents as
well as brothers or sisters. According to v. 12, the
mother gets one-third’s if a person has no issue, nor
brothers or sisters, and she gets one-sixth if the
issueless person has brothers or sisters. This
reduction of her share is evidently due to the
presence of brothers or sisters, and it is these
brothers or sisters that are spoken of v. 12, so that
the kalala of that verse is the issueless person who
has parents. Thus when a person dies without issue
but leaves parents, brothers and sisters, according to
v. 4:12, get a share which is one –sixth of the
deceased’s property if there is only one brother or
one sisters, and one-third of it if there are two or
more brothers and sisters. According to v. 4:177,a
single sister (of a male deceased) or brother (of a
female deceased) is entitled to one-half, two or more
sisters to two-thirds, brothers and sisters to the
whole property, the male having double the share of
the female. This evidently is the case in which the
deceased leaves neither issue on parents.
“The case of husband or wife is also dealt with in
v. 12. The husband gets one-half if the deceased wife
has no issue, and one-fourth if she leaves issue. The
wife gets one fourth if the deceased husband has no
issue, and one-eight if he leaves issue. The share of
the husband or wife, being fixed like that of the
portions of the parents, must be taken out first, and
the rest of the property will go to the children, or in
case in there are no children, or brothers and sisters.
“Briefly, the inheritance law as laid down in the
Holy Quran is this. After the payment of debts and
execution of the will, if any, the shares of the parents
and husband or wife shall be first taken out; after
which the rest of the property shall go to the children,
the son having double portion of the daughter; if
there are no children and there are brothers and
sisters, one-sixth if there is only one brother or sister,
and one-third if there are more then one, shall go to
them; if the deceased leaves neither children or
parents, the whole of the property, after husband’s or
the wife’s share has been taken out, shall go to
brothers and sisters; if there is a single female
,daughter or sister, she shall take one-half of the
property ,a single brother following the same rule,
and if there are two or more daughters or sisters they
shall take two-thirds, the residue going to the nearest
male relative according to Hadith; if a person entitled
to inheritance is dead but leaves behind off, spring,
the grandfather or the grandmother shall take his or
her place; all brothers and sisters, whether uterine or
consanguine or full, shall be treated equally; if there
are no brothers or sisters, the nearest relatives after
them, such as father’s brothers or father’s sisters,
shall take their place.
“The inheritance law as explained above, on the
basis of the Holy Quran, is very simple, and not the
least complication arises in its application. It is when
the spirit underlying that law is neglected that
complication arise. For instance, it is clear that when
there are parents and husband or wife along with the
children, the parents and the husband or wife would
their share first and the rest of the property would go
to the children. In case there are two or more
daughters only among the children, two-thirds of the
residue ought to go them, the remaining one-third
going to the nearest male relative. But the jurists in
this case adopt a peculiar course. They allot two-third
of the whole to the daughter, one-third to the parents
and one-fourth or one-eight to the husband or the
wife, as the case may be,. This evidently leads to a
complication, as the daughters get two –thirds,
parents one-third, husband or wife one-fourth or one-
eight, the total amount of shares being 5/4 or 9/8.
This difficulty has been solved by dividing the
property into fifteen parts in the first case, and giving
3/15 to the daughter, 4/15 to the parents and 3/15 to
the husband, and into 27 parts in the second case,
giving 16/27 to the daughters, and 8/27 to the parents
and 3/27to the wife. These are not the share specified
in the Holy Quran, and this is due to the neglect of the
spirit of the ordinance which, while allowing the whole
of the residue, after taking away the shares of the
parents and the husband or a wife, to the children if
they are all sons or sons and daughters mixed, allows
them only two-thirds of the residue if they are only
daughters, the rest going to the nearest male relative
according to the Hadith. The jurists’ convention goes
under the name of aul’. The introduction of the ‘aul is
however due only to an infringement of the real
essence of the ordinance relating to the two-thirds
share of the daughters.
“Similarly, the jurists treat a son’s son, when the
son is dead, as belonging to the second group of
inheritors, whereas he really belongs to the same
category as the son, because he takes the son’s dead
share. Suppose a man has three sons, one of whom is
dead at the time of the dead of his father, but leaving
children. To deprive this children to go against all
rules of equity, but the jurist s are of opinion that the
grandsons are excluded by the living sons and are not
entitled to their father shares.
“In fact, if the rule were generally adopted that
when a person entitled to a share in an inheritance is
dead, his children shall take his place, many of the
complications, which the result of juristic reasoning,
would disappear. The third points on which in my
opinion, the jurists have gone against the spirit of the
Quran, is the distinction between uterine and
sanguine and full brothers which is the result of a
misconception about the words kalala and which has
been fully explained above.”
III. RULES ON EXCLUSION
ARTICLE 23 BASES OF PROHIBITION. - No marriage

may be contracted parties within prohibited
degrees.
(a) Of consanguinity;
(b) Of affinity; and
(c) Of fosterage.
The rules of exclusion among heirs may be

either total on or partial. Total exclusion is (Hujud
Herman) while partial exclusion is Hujud Muksan.
Total exclusion is a process where a relative of the
decedent may be deprived of either because he is
remote by the blood or due to some causes of
disinheritance (like attempt to kill or apostacy).
Example six (6) persons cannot be excluded (they
in fact exclude others); (1) Husband; (2) Wife; (3)
Mother; (4) Father; (5) Son; (6) Daughter. Partial
exclusion is a process of partial exclusion based
on relation or distribution example (1) Father
excludes grandfather or son excludes son’s son;
(2) Husband who survives alone ½ and if he
survives with the son of the decedent, he has only
¼ share.
RASHID BOOK-MUSLIM LAW: RULES OF TOTAL AND

PARTIAL EXCLUSION
“Both under Shia and Sunni system, 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 system recognized
two types of exclusion-
(i) partial or imperfect exclusion; and

(ii) total or perfect exclusion
(i) Partial or Imperfect Exclusion
It may come in two ways

(a) Exclusion from one share and admission to
another. For example, daughter in the presence of the
son is excluded as a “Sharer” and becomes
“Residuary”.
(b) Partial reduction of the specific share because
of the presence of the certain heirs. For example, the
share of wife is either ¼ or 1/8 according to the
absence or presence of a child or child of a son, how
low soever. Similar is the case of husband, whose
share is either ½ or ¼.
(ii) Total or Perfect Exclusion-The term

“total exclusion” applies to cases when although a
person, related to the prospositus and otherwise
entitled to inherit, is excluded by some “legal cause”.
Both in the Shia and Sunni systems this type of
exclusion is based on three principles:
PRINCIPLE I. – “A person who is related to the

deceased through another is excluded
by the presence of latter.”(E.g. father excludes
brother).
Exception. – Mother does not exclude brother or

sister.
PRINCIPLE II. – “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 are the following grounds:
(a) Religion. – According to Islamic law, a non-

Muslim cannot inherit from a Muslim. Thus, if a
Muslim apostizes, he excluded from inheritance. In
India, however, this rule does not apply after the
passing of the Caste Disabilities Removal Act, 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 among Shias and Sunnis.
Hanafis says that one who causes the death of
another either intentionally, cannot inherit f5rom the
deceased.
However, an act committed by an infant or insane
person which causes death of another person, does
not exclude such infant or insane from inheritance.
Moreover, the act causing the death should be of
direct nature; for example, when a person has dug a
well into which another falls, or placed a stone in the
road against which another stumbles and is killed in
consequence are not sufficient for total exclusion.
Several Muslim countries having been dissatisfied
with the Hanafi law on this point have adopted Maliki
principle, that one who intentionally kills or causes
the death of another, directly or indirectly, will be
precluded from any right to inherit from him, while
one who kills another by accident, even by a direct
act, such as shooting a pistol or flinging a bomb, will
not suffer any such deprivation.
Shias says that the homicide must be intentional,
but the absence of intention should be clearly proved.
(c) Slavery. – Both under the Shia and laws, the

status of slavery is a bar to succession. This branch of
Muslim law, however, is absolete in India, as the Act V
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 side of mother.
In Shia law, on the other hand, illegitimacy acts as
a factor for total exclusion, and a bastard is not
allowed to inherit from mother or father. A distinction
is, however, draw between a child of fornication and a
child whole parentage has been disallowed by the
father, that is, a child is excluded from inheritance;
while a child impercation, is allowed to inherit from
the side of mother. Sunni law does not recognize this
distinction. The child of fornication and impercation
are both regarded as illegitimate, and inherit from
mother’s side.
(e) Exclusion of daughter by custom or by

statute.-
There are two statutes of limited application

which excludes form inheritance. These statutes are:
The Watan Act (Bombay), 1886; and

The Oudh Estates Act, 1869
(f) Relinquishment inheritance rights. - In a recent

case the Supreme Court held that relinquishment of
future possible right of inheritance by an heir may
debar him from inheriting.
X, a Muslim died leaving behinds five sons and
daughter, and his widow as heirs. During his lifetime X
incurred debts so heavily that all his property would
have been sold in their satisfaction. Under these
circumstances, three of his sons, who had prospered,
came to his rescue so that property may b served.
But, apparently, they paid up the debts only in order
to get the properties for them to the exclusion of
other two sons, who executed deeds acknowledging
receipt of cash and movable properties as
consideration for not claiming any rights in future in
the properties mentioned on the deeds in which they
gave up their possible rights in future.
During the father’s lifetime, when all chance or
expectation of inheritance by either of the two sons
could be destroyed by disposition of property, neither
of these two raised his little finger to object. In view
of these facts, the question before the Supreme Court
was whether the two sons are estopped by their
declaration and conduct of silence from claiming their
shares in the properties covered by deeds. The Court
answered it by observing: “A bare renunciation of an
expectation to inherit cannot bind the expectant heirs
conduct in future. But, if the expectant heir goes
further and receives consideration and so conducts
himself as to mislead an owner into not making
disposition of his property inter vivos, the expectant
their could be debarred from setting up his right when
it does unquestionably vest in him.”
The Court further observed that Islamic
Jurisprudence classifies human actions into three
categories: bad, good or neutral, and attaches varying
degrees of approval and disapproval to them.
“The renunciation of a supposed right based upon
an expectancy, could not, by any test found there be
considered ‘prohibited’ (or bad). The force in future of
such a renunciation would depend upon the attendant
circumstances and the whole course of conduct which
it forms a part. In other words the principle of a
equitable estoppel, far from being opposed to any
principle of Muslim law will be found, on investigation,
to be completely in consonance with it.”
Need of Modification – Some of the rules of
exclusion described above suffer with certain defects
and need modifications. For example, the exclusion on
the basis of homicide, in Hanafi law should be
restricted to intentional homicide: a child of
fornication should be accepted as an heir in Shia law;
and the statues which exclude daughters from
inheritance and thus defeat a most cardinal principle
of Muslim law, should be repealed.
Explanation of important terms used:
With a clear understanding of the various terms

used in this Chapter, the law of inheritance would be
easy to understand. It is recommended that the
students should first remember the meaning of these
terms:
(i) ‘Deceased’ or ‘propositus’ – The person whose
relations are sought to be ascertained to inherit his
estate according to the laws of inheritance.
(ii) ‘Lineal descendant’ or ‘Lineal ascendant’ – The
person who has descended or ascended in a direct line
from the other. For example, a man, his father,
grandfather, great grandfather, and so upwards, are
all lineal ascendants of the first man.
(iii) ‘Collateral’ – A person having a 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.
(iv) ‘Paternal’ and ‘Maternal’ relations – Claimants
related through the father (e.g. brother, sister,
grandfather) are called ‘paternal relations’. Claimants
related through the mother (e.g. uterine brothers and
sisters; grandmother) are called ‘maternal relations’.
(v) ‘Agnate’ – A person whose relation to the
deceased can be traced without the intervention of
female links, e.g., a son’s daughter, son’s son,
father’s mother are agnates.
(vi) ‘Cognate’ – A person related to the deceased
through one or more female links (the position does
not change if a male link intervenes), e.g. daughter’s
son, daughter’s daughter, son’s daughter’s son.
(vii) ‘True Grandfather’ – The agnatic grandfather
between whom and the deceased no female link
intervenes; e.g., father’s father, or father’s father and
son on. ‘False Grandfather’ – The grandfather between
whom and the deceased one or more female links
intervene.
(viii) ‘true Grandmother’ – A female ancestor
between whom and the deceased no false grandfather
intervenes. If a false grandfather intervenes, he is
‘false’ grandmother.
(ix) ‘Consanguine’ (half) sisters and brothers – The
children of the same father, but by different mothers.
(x) ‘Uterine’ (Half sisters and brother – The
children of the same mother but by different fathers.
CLASSES HEIRS:
HANAFI LAW OF INHERITANCE
Hanafi jurists divide heirs into seven classes, the

three principal and the four subsidiary classes –
PRINCIPAL CLASSES:
c/0 koranic
(i) Koranic Heirs (Shares);
(ii) Agnatic Heirs (Residuaries);
(iii) Uterine Heirs (Distant Kindred);
SUBSIDIARY CLASSES:
(iv) The successor by contract;

(v) The Acknowledged Kinsman;
(vi) The Sole Legate;
(vii) The State, by Escheat.
The first step in the distribution of the estate of a

deceased Muslim, after payment of his funeral
expenses, debts and legacies, is to allot their
respective shares to the Koranic heirs. If any residue
is left, it is to be divided among Agnatic heirs
(Residuaries). If there be neither Sharers nor
Residuaries, the estate will be distributed among
Distant Kindred. The Distant Kindred are not entitled
to succeed so long as there is any heir belonging to
the class of shares or Residuaries. But there is one
case in which the Distant Kindred will inherit with a
sharer, and that is when the sharer is the wife or
husband of the deceased.
In the absence of a member of the three principal

classes (i.e. Koranic, Agnatic and uterine heirs) the
right of inheritance devolves upon subsidiary heirs,
among whom each class excludes the next.
Successor by contract is a person whose right of

inheritance is based on a contract with the decease in
consideration of an undertaking given by him to pay
any fine or ransom. Fyzee says that it is merely of
antiquarian interest, because compensation for
criminal offenses is not payable in India.
Acknowledged Kinsman is a person of unknown

descent in whose favour the deceased has made an
acknowledgement of Kinship, not through himself, but
through another. Consequently, a man may
acknowledge another as his brother (descendant of
father), or uncle (descendant or grandfather, but not
as his son).
Universal Legate – In the absence of three classes

of Principal heirs and the above described classes of
two Subsidiary heirs, a person is entitled to bequeath
the whole of his estate to any person, who is called
the Universal legatee.
The State, by Escheat – In the absence of either

Principal or subsidiary heirs, and a will, the whole of a
estate of a deceased would escheat to the
Government.
IV. COMPUTATION OF SHARES (KAY FIYATI)
A. Root of the problem (Usul Al Masail)
In computation of shares, the first step is to look

for the root of the problem or common factor or
denominator or relationship of numbers. Hence, we
should know the following terms:
(I) Tamasul – when the numbers are the same or
proportionate to each other.
(II) Takalihuf – when the numbers are dissimilar

(not the same) or disproportionate.
3 Kinds of Takalihuf)
(A) Takalhufi Tadakhul (unequal), numbers are

uneven but proportionate. Example, 2 & 4; 2 & 8; and
4 & 8.
(B) Takalhufi Tabayan (contrary), numbers are

disproportionate and contrary. Example, ½ and 1/3;
2/3 and ¼.
(C) Takalhuf Tawaihuq (reconcilable), numbers

that could be reconciled by division, then
multiplication.
Example:
(1) 8÷2= 4 (2) 6÷2= 3
(3) 4÷2= 2 (4) 6÷2= 3
2x6 = 12 3x4 = 12
Illustrations
(1) Al Tamasul –
(A) Wife dies without a child. The only heir is her
husband.
Solution:
The share of the surviving husband is ½ of the
estate, since the descendant left no child.
½ is for the husband (only share)
½ is for the residue.
The procedure is divide and minus. First, find the
root of the problem of ½ and ½.
The root of the problem – 2
2÷2 = or ½ ( 2 as root of the problem is under in a
fraction).
(B) Supposing the wife left a husband and one
son, what is your computation:
Solution:
The share of the husband is only ¼ not 1/2 , since
there is a son.
The procedure is divide and minus. The root of the
problem is 4.
4÷4 = 1 or ¼ 4 is under in a fraction, since
4-1 = 3 ¾) It is the root.
Therefore: The share of the husband is ¼ and the
shrae of the son is ¾.
(C) Suppose the wife left two sons and a husband,
what is your computation?
Solution is, the husband has ¼, the two sons have
¾.
The procedure is divide and minus.
The root of the problem – 4
4÷2 = 1 or ¼ for the husband
4-1 = 3 or ¾ for two sons.
Since ¾ cannot be divided between the two (2)
sons, the procedure is to find the new root of the
problem or lower denominator. This is called the
doctrine of Correction. Since, there are two sons we
should multiply the original root of the problem by 2,
to find the new Root of the problem.
Illustration:
Original Root of the problem 1/4 x 2 equals 2/8.
share of the husband, and 3/4x2 = 6/8 for the two
sons at 3/8 each.
(D) Suppose the wife left two sons, and one
daughter, what is your computation?
Solution:
The share of the husband is ¼ and ¾ goes to the
two sons and one daughter.
Sine the share of the son is double than that of
the daughter, two sons and one daughter equals five
(5) bodies and since ¾ cannot be divided by five (5),
the procedure is to find a new Root by the Doctrine of
Correction. Multiply 1/4 x5 = 5/20 as the share of the
husband and 15/20 as the share of five bodies, as
follows: 3/20 for the daughter, 6/20 for one son and
6/20 for another son = 20/20.
Let us invert the illustration. Instead of the wife
who dies, it is now, the husband who dies.
(A) Suppose the husband dies leaving no child nor
heir except the wife.
Solution:
Wife gets ¼ if she survives alone without a child.
The procedure is divide and minus.
Root of the problem is 4
4÷4 = 1 or 1/4, for wife
4-1 = 3 or ¾, for residue.
(B) Suppose the husband dies leaving the wife
with two sons.
Solutions:
The wife gets 1/8 only if she survives with two
sons
S÷8 = 1 or 1/8 for wife
8-1 = 7 or 7/8 for two sons
Since 7/8 cannot be divided equally between two
sons, the procedure is the Doctrine of Correction – by
multiplying the share by the number of bodies. Since
it is 2 sons.
1/8 x 2 = 2/16, for the wife
7/8 x 2 = 14/16, for the two sons at 7/16 each of
the two sons.
(C) Suppose the husband is survived by 4 wives, 4

sons and 4 daughters, how do you compute?
First of al, let us understand the meaning of per
capita or per class and per stirpis or members of the
class, individually considered.
1/8 belongs to the wife per capita = The four
wives will divide the 1/8 share into 4, each wife
receiving per stirpis, as members of the class of 1/8
share.
7/8 belongs to 4 daughters. Since 1 son receives
double that of the daughters, one son equals 2.
Hence, 4 sons equals 8 + 4 daughters equals 12
bodies or shares.
1/8 x 12 = 12/96, for the four wives at 3/96 each
per stirpis.
7/8 x 12 = 84/96, for the 12 daughters.
(7/96 daughter
28 (7/96 daughter
(7/96 daughter
(7/96 daughter
(14/96 son
56 (14/96 son
14/96 son
14/96 son
96/96 = The Estate
II. TAKALHUF
(A) Takalhuf i Tadakhul – when the numbers are

unequal but are proportionate to each other and the
bigger can be divided by the smaller without any
remainder.
Example: 2 and 4; 2 and 8; 4 and 8.
Illustrations:
A person dies leaving his wife and full sister, what
is your computation?
Solution:
Since there is no child, the wife receives 1/4, the
share of the sister is ½, she being alone.
Root of the problem is 4.
Procedure is to divide, plus and minus.
4÷4 = 1, share of the wife
4÷2 = 2, share of full sister
1+2 = 3
4-3 = 1 residue
(B) Takalhuf i Tibayon – when the numbers are not

only disproportionate but also contrary.
Example: ½ and 1/3; 2/3 and ¼
Illustratios:
A person dies leaving as heirs his mother and full

sister, how do you compute?
Solutions:
The share of the mother is 1/3, if the decedent

leaves no child or child of a son. The share of the full
sister is ½ she being alone. To get the root of the
problem, you multiply 2x3=6 because this is a case of
Tibayon, when the numbers are disproportionate and
contrary. Hence, the root of the problem is 6
6÷3 = 2, share of the mother
6÷2 = 3, share of the sister
2+3 = 5
6-5 = 1, Residue
(C) Takalhuf i Tawafhuq
Numbers that can be reconciled by looking for the

smallest number – division that could divide either of
them. The quotient multiplied with the other equals
the root of the problem.
Example: ¼ and 1/6; 1/6 and 1/8
Illustrations:
A person dies leaving his wife, father, two sons

and three daughters. How would you divide?
Solutions:
The share of the wife is 1/8 and the father has 1/6.
two sons and three daughters are residuaries.
To get the root of the problem (procedure is

divide and multiply)
8÷2 = 4, then
4x6 = 24 which is the root of the problem
24÷6 = 4, share of the father
3+4 = 7
24-7 = 17, share of sons and daughters
Since 17 cannot be divided among 2 sons
And 3 daughters, multiply it by 7 bodies=
2 sons x 2 = 4 bodies plus 3 daughters
bodies equals 7 bodies.
3x7 = 21, share of the wife

4x7 = 28, share of the father
17x7 = 119, share of two sons and 3 daughters
119÷7 = 17
17 for each daughter
34 for one son
34 for one son
The constant root of the problem is2,3,4,6,8,12,24
(seven 7 numbers)
(B) Doctrine of Correction (Tashe)
Sunni lawyers devised a formula so that shares

which cannot be divided among heirs co-existing cn
be done by reducing to lowest denominator so that
they could be divided without remainder.
Example:
A person dies leaving the wife, daughter, mother
and four (4 full sisters, how would you divide the
shares?
Solutions:
Share of the wife is 1/8
Share of the daughter is ½
Share of the mother is 1/6
Share of four full sisters is residue
Here, the root of the problem is 24 or common
denominator.
24÷2 = 12, share of the daughter
24÷6 = 4, share of the mother
3+12+4 = 19
24-19 = 5, residue for the full sisters
Since 5 cannot be divided for the full sisters
For new root of the problem. This is the Doctrine of
Correction, by multiplying all shares by four sisters.
3x4 = 12, share of the wife
12x4 = 48, share of the daughter
4x4 = 16, share of the mother
5x4 = 20, share of 4 full sisters at 5 each.
(C) Doctrine of increase (Aul)
It may happen that several sharers co-exists, so

much so that when their shares are added up, they
exceed the entire property or estate of the decedent.
To meet this difficulty, the Sunni lawyers make a
proportionate abatement or lowering of all shares by
increasing the root of the problem.
Illustrations:
A person dies leaving as heirs, a husband and two
full sisters.
Solutions:
The share of the husband is ½
The share of two full sisters is 2/3
6÷2 = 3, share of the husband
6÷3 = 2, share of the one sister
2x2 = 4
3+4 = 7
Hence, the total share of 7 exceeds the root of the
problem which is 6 by 1. Therefore, we used AUL or
increase by increasing the root of the problem from 6
to 7 to equal the root of the problem with the total
share which is 7.
Hence: 3/6 will be 3/7
4/6 will be 4/7
7/7 or 1.
(D) The Doctrine of Increase: This may be clarified

thus:
(1) If the root of the problem is 6, it may be

increased to 7,8,9 and 10
increased to 13, 15 and 17.
increased to 27.
The above explanation is positively expressed in

Article 129 of the Muslim Code which states that if the
totality of all the shares assigned to each of the
sharers exceeds the whole inheritance, the shares
shall be reduced proportionately.
The Doctrine of Aul is explained by Sayed Khalid
Rashid.
“Doctrine of Aul or Increase – It is pretty clear
that in the Muslim law of inheritance which allots a
number or fractional parts of unity to various heirs, it
may happen that the fractions when added together
may sometimes be (i) equal to unity, (ii) more than
unity or (iii) less than unity. When the sum of
fractions is equal to shares of respective heirs are
reduced or increased respectively. The process
whereby the sharers are reduced is called the
Doctrine of Increase 9Aul); and the process whereby
the shares are increased is called the Doctrine of
return (Radd).
“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.”
Illustrations:
(a)
Husband . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.½
(b) 2 full sisters . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . 2/3
Since the total of ½ and 2/3 = 7/6 which is more

than unity, doctrine of ‘increase’ will apply in this
case.
First Step – ‘Reduce fractional shares to a
common denominator.
Thus, ½+2/3 = 3/6 (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).
(b) Husband . . . . . . . . ½ = 3/6 reduced to 3/8
2 full sisters . . . . 2/3 = 4/6 reduced to 4/8
Mother . . . . . . . . . 1/6 = 1/6 reduced to 1/8
8/6 8/8
(c) Widow . . . . . . . . . . ¼ = 3/12 reduced to 3/15

2 full sisters . . . . 2/3 = 8/12 reduced to 8/15
Uterine sister. . . 1/6 = 2/12 reduced to 2/15
15/12 15/15
(d) Wife . . . . . . . . . . . 1/8 = 3/24 reduced to 3/27

2 daughters . . . . . 2/3 = 16/24 reduced to
16/27
Father . . . . . . . . . 1/6 = 4/24 reduced to 4/27
27/24 27/27
Doctrine of Increase in Shia Law. Shia Law does

not recognize Hanafi doctrine of Increase (Aul). Shia
Law says that if the unity is deducted invariably from
the share of –
(i) the daughter of daughters;
(ii) the full or consanguine sister or sisters.
Illustrations:
(a) Daughter . . . . . . . . ½ = 6/12 reduced to

(6/12 – 1/12 = 5/12
Father . . . . . . . . . 1/6 = 2/12 2/12
Husband . . . . . . . . ¼ = 3/12 3/12
Mother . . . . . . . . . 1/6 = 2/12 2/12
13/12 12/12
(b Full sister . . . . . . . . . ½ reduced to (1/2 –

1/6) =
1/3
Husband . . . . . . . . . . . ½
Uterine
Brother . . . . . . . . . . . . 1/6
DOCTRINE OF RETURN (RADD)
Under the Conservative Shafii view, there is no

return in favor of sharers and instead, the Baitul-mal
is preferred. It is only in cases where the Baitul-mal is
mismanaged or under unjust ruler that distant
kindred takes preference.
There are eight (8) persons who are entitled to
return, namely: (1) mother, (2) grandmother, (3)
daughters, (4) son’s daughters, (5) full sister, (6) half
sister by father, (7) half brother by mother and (8)
half sister by mother.
The return may take place to one, two or three
classes of sharers but not more. The number to which
the root of the problem may be reduced by means of
return are 2,3,4 and 5.
(1) example: 9reducing to 2)
A person dies leaving a grandmother and

consanguine sister as the only heir.1
Solution:
Share of grandmother – 1/6 and share of
consanguine sister is 1/6
Root of the problem is 6.
6÷6 = 1 share of grandmother
6÷6 = 1 share of consanguine sister.
Therefore, the root of the problem is reduced
from 6 to 12.
Hence, ½ share of the grandmother
½ share of the consanguine sister.
(2) Example: (reduced to 3

A person dies leaving a grandmother and 2
uterine sisters only.
Solution:
The share of grandmother is 1/6
The share of 2 uterine sisters 1/3
Thus, the root of the problem is 6
6÷6 = 1, share of grandmother
6÷3 = 2, share of 2 uterine sisters
Therefore, the root of the problem –
6 is reduced to 3, thus,
1/6 is reduced to 1/3
2/6 is reduced to 2/3
The above explanation is expressed in Article 130

of the Muslim code which provides that if after
distributing the portions of the sharers, a residue is
left in the inheritance and there is no surviving
residuary heir, the same shall revert in its entirety to
the lone sharer or to all the sharers in proportion to
their respective shares. However, the husband or the
wife shall not be entitled to any part of the reverted
portion as long as there are other sharers or distant
kindred.
“doctrine of return or ‘Radd’ – If the sum total of
fractions allotted to sharers is less than unity 9that is,
something is left behind after satisfying the claims of
each Sharer) and there is no residuary to take the
redue, the residue reverts back to the sharers in
proportion of their shares.”
Exception – in the presence of any heir, neither
the wife nor the husband is entitled to the ‘Return’.
Illustration:
(a) Mother . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1/6
Daughter . . . . . . . . . . . . . . . . . . . . . . . . . . .
½
As the total of 1/6 and ½ 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 + ½ = 1/6 + 3/6 (here 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 ¼ + ¾, here 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 + ¾ = 4/4 = 1).
(b) Husband . . . . . . . . . . . . ½
Mother . . . . . . . . . . . . . ½ (1/3 as sharer and
¼ by Return).
(c) Wife . . . . . . . . . . . . . . . ¼
Sister (f or c) . . . . . . . ¾ (1/2 as sharer and ¼
by Return)
(d) Mother . . . . . . . . . . . . . 1/6 increased to 1/5

½ = 3/6 increased to 3/5
Uterine brother . . . . . 1/6 increased to 1/5
5/6 5/5
(e) Husband . . . . . . . . . . . . ¼ 4/16

Mother . . . . . . . . . . . . . 1/6 increased to ¼
¾ 3/16
Daughter . . . . . . . . . . . ½ = 3/6 increased to
¾ of . . . . . . . . . . . . ¾
11/12 16/16
(f) Mother . . . . . . . . . . . . 1/6 increased to 1/5

Daughter . . . . . . . . . . . ½ = 3/6increased to
3/5
Son’s daughter . . . . . . 1/6 increased to 1/5
5/6 5/5
(g) Wife . . . . . . . . . . . . . . 1/8 (gets no Return)

5/40
Mother . . . . . . . . . . . . 1/6 increased to 1/5
of 7/8 = 7/40
2 son’s
daughters . . . . . . . . . . 2/3 = 4/6 increased
to 4/5
of 7/8 28/40
23/24 40/40
(h) Wife . . . . . . . . . . . . . . ¼
4/16
Full sister . . . . . . . . . . ½ = 3/6 increased
to ¾
of ¾ 3/16
11/12 16/16
(i) Father’s mother . . . . . 1/6 increased to

1/5
Mother’s mother
Full sister . . . . . . . . . . ½ - 3/6 increased
to 3/5
Sister . . . . . . . . . . . . . 1/6 increased
to 1/5
5/6 5/5
(j) Father’s mother . . . . . 1/6 increased to

1/5
Mother’s mother
Son’s daughter . . . . . . 2/3 = 4/6 increased
to 4/5
5/6 5/5
(k) Husband . . . . . . . . . . . ½
Daughter’s son . . . . . ½
Note – In the presence of an heir, whether he be of

the class of ‘distant kindred ‘as daughter’s son, the
husband is not entitled to get any ‘return’. The
surplus will, therefore, go to the daughter’s son.
Doctrine of ‘Return’ in Shia Law – If there is a
residue left after satisfying the claims of shares, and
there are no blood relations in the class to which the
Sharers (Koranic heirs) belong, the residue reverts to
the Sharers proportionately. (This rule is subject to
three exceptions).
Illustrations:
(a) Uterine sister . . . . . . . . . . . . . 1/6

increased to ¼
Consanguine sister . . . . . . . . . . ½ = 3/6
increased to ¾
(b) Mother . . . . . . . . . . . . . . . . . . . 1/6

increased to ¾
Daughter . . . . . . . . . . . . . . . . . . ½ = 3/6
increased to ¾
Brother . . . . . . . . . . . . . . . . . . . . (exclude,
as being an heir of
The second class).
Exception I: Spouse – Neither the husband nor the
wife is entitled to the ‘Return’, if there
is any other heir.
Illustrations:
Husband . . . . . . . . . . . . . . . . . . . ¼
Father . . . . . . . . . . . . . . . . . . . . 1/6 increased
to ¼ of
¾ = 3/16
Daughter . . . . . . . . . . . . . . . . . . ½ = 3/6
increased to ¾ of
¾ = 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, through 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.
Illustrations:
Mother . . . . . . . . . . . . . . . . . . . 1/6
Father . . . . . . . . . . . . . . . . . . . . 1/6 increased
to ¼ of
5/6 = 5/24
Daughter . . . . . . . . . . . . . . . . . . ½ = 3/6
increased to ¾
of 5/6 = 15/24
2 full brothers . . . . . . . . . . . . . (excluded)
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).
(a) Uterine brother . . . . . . . . . 1/6
Full sister . . . . . . . . . . . . . . ½ (as sharer) +
1/3
(by Return) = 5/6
(b)Wife . . . . . . . . . . . . . . . . . . ¼ = 3/12
Uterine sister . . . . . . . . . . 1/6 = 2/12
Full sister . . . . . . . . . . . . . . ½ (as sharer) +
1/12
(by Return) = 7/12
(E) Double Inheritance or Vested Interest
An heir may inherit for causes based on two (2)

factors (1) by marriage and (2) by blood.
Example: (1) Surviving husband
(2) Surviving first cousin, there being no
heir
When a deceased person leaves a certain heir who

dies before partition, the heirs inherit under the
former deceased and under the heir who dies before
the partition.
Example: Surviving heirs are son, daughter, a

brother on father’s side. The son and daughter take
share 2 to 1 but brother on father’s side is excluded.
However, if before distribution, the son dies, leaving
his sister 2/3 and his paternal uncle 1/3 of the share
of 2/3. This is a case of double inheritance. That the
sister 1/3 of the share of 2/3. This is a case of double
inheritance. That the sister 1/3 of the estate, as sister.
Since the son, and 1/3 of the 2/3 share of the son goes
to the paternal uncle.
xxxxx
ARTICLE 133. ADMINISTRATION

The administration of the estate of a decedent
shall, for purposes of settlement, vest at the time of
his death in the executor appointed in the will, or in
the absence thereof, in his heir or administrator to
whom the court has granted letters of administration.
ARTICLE 134. GOVERNING SCHOOL OF LAW
(1) In every petition for probate of will or for the

settlement of the estate of a decedent, all matters
relating to the appointment of administrator, powers
and duties of administrator or executor, the court
shall take into consideration the school of law
(madhhab) of the decedent.
(2) If the decedent’s maddhab is not known, the
Shafi’I school of law may be given preference together
with the special rules of procedure adopted pursuant
to this Code.
ARTICLE 135. ORDER OF PREFERENCE OF CLAIMS –

The estate of a decedent shall be applied to claims
and changes in the following order:
(a) unpaid taxes;
(b) reasonable funeral expenses;
(c) the expenses for probate, administration and
other judicial expenses;
(d) the debts of the decedent;
(e) the legacies to the extent of the disposable
one-third;
(f) the distribution of shares among heirs; and
(g) unpaid dower
ARTICLE 136. LIABILITY OF HEIRS
The liability of the heirs of a decedent for the

payment of the latter’s debts shall not exceed the
hereditary estate. Each heir shall be liable only for the
payment of the decedent’s debt in proportion to his
share.
COMMENTS:
In Article 133 of the Muslim Code, the
administration of the estate of the deceased first
devolves upon the executor mentioned in the will and
in the absence thereof, in the heir or administrator
appointed by the Court.
The governing school of law to be followed in the
probate of the will or settlement of the estate is the
school of law or maddhab of the decedent, as
provided for in Article 134 of the Muslim Code. If the
decedent’s school of law is not known, then Shaffi
School of Law together with the special rules of
procedure adopted pursuant to this Code shall be
given preference. According to established Islamic
jurisprudence, the order of preference of claims from
the estate of the decedent shall be in the following
order, (1) Funeral or burial expenses; (2) Debts of
decedent; (3) Legacies and (4) The distribution of
shares among heirs. Under Article 135 of the Muslim
Code, the payment of the Muslim Code of unpaid
taxes, both estate and inheritance taxes take
precedence or priority to the first, funeral or burial
expenses. Likewise, the expenses for probate,
administration and other judicial expenses take
priority to the debts of the decedent. Furthermore,
the unpaid dower comes after the distribution of
shares among heirs. In other words, while the
established principles of Islamic law enumerates 4
orders of preference, Article 135 of the Muslim Code
enumerates seven orders of preference of claims to
the estate of the decedent. According to Mohammad
Ali, debt as shown in Verses 11 and 12 of the Holy
Quran is the first charge. The expenses of burial are
considered debt. Likewise, the probate,
administration and other judicial fees as well as
unpaid dower are also considered debts.
Consequently, the order of preference of claims
against the estate of the decedent are only three (3),
namely: (1) debts; (2) legacies and (3) lastly,
distribution of the share of the heirs, according to
Islamic Law.
A perusal of the comments of Sayed Khalid Rashid
is informative on this score, namely:
A. Administration of the Estate
Commenting upon the principles governing
“administration of estates” of a Muslim in India,
Wilson observes:
This topic belongs partly to the substantive law of
succession and partly to the department of adjective
or procedural law. Consequently, we might expect to
find in fact, that in British India, it is partly regulated
by Muhammadan Law, and partly by statutory
enactments. The question, what becomes of a man’s
rights and obligations at the moment of his death? Is
a question of substantive, and therefore (for
Muhammadans in British India) of Muhammadan Law.
But such question as, whose duty is to give orders to
the undertaker? To whom should the creditors of the
dead man send in their bills? From whom will his
debtors be safe in taking a receipt? Who is entitled to
take immediate charge of the property? And above all,
what may, and what may not be done without the
intervention of a public officer? Are questions of
adjective law, the answers to which are not to be
sought, in British India, from the Muhammadan Law
sources, but from Anglo-Indian codes or the practice
of the Courts. Unfortunately, the ancient
Muhammadan text writers could not foresee this
curious dismemberment of their system by a non-
Muhammadan Legislature, and saw no special reason
for drawing a sharp line between substantive and
adjective law in their expositions. Even in England the
lawyer in search of a rule substantive law in
sometimes driven to infer it from some old decision on
a point of procedure; and there is therefore nothing
surprising in the fact that the Muhammadan answer to
the first of the above questions has to be gathered
mainly from passages dealing professedly with duties
of the kazi.
The duty of administering an estate, according to
the law of Islam, rests on the state, acting through
the kazi. Hence it is correct to say that administration
as understood in modern law, involving necessarily
the recognition of an executor or the appointment of
an administrator, was unknown to Islamic
jurisprudence.
Administration was introduced into the fabric of
Muhammadan Law by the reception of the English
concept of administration and later by the enebling
provisions of the Probate and Administration Act,
1881.
According to the Muslim legal theory, the property
of a deceased Muslim vests in his heirs immediately
after his death. But it is subject to the injunction that
the heirs are entitled to take only that residue which
is left after the payment of debts and legacies
necessarily involves the administration of the estate,
such administration may be said to implied in the very
spirit of Muslim Law itself.
Muslim Law recognizes for distinct purposes to
which the estate of the deceased is successively
applicable:
(1) his funeral expenses;
(2) his debts;
(3) his legacies; and
(4) the claim of his heirs
But Muslim Law is replaced by the Indian
Succession Act, (XXXIX of 1925), which lays down the
following scheme of the order of priority in which the
payment are to be made:
(1) Funeral expenses and death-bed charges;
(2) Expenses of obtaining probate or letters of
administration;
(3) Wages for services rendered to the deceased
by a laborer or servant within three months of his
death;
(4) Debts, according to their own priorities
(discussed later on in this chapter);
(5) Legacies, not exceeding one-third of what has
been left after payments of items mentioned in (1) to
(4) above.
This brings us to the consideration of an
important question; whether vesting of the estate in
the heirs takes place immediately on the death of the
propositus or his dependent upon the payment of
debts.
Vesting of Estate – Delivering his famous
judgment in Fafri Begam V. Amir Muhammad, Mr.
Justice Mahmood observed:
It is well known that the Muhammadan Law of
inheritance is based upon a passage in the fourth
chapter of the Koran, which is Sale’s translation is
thud rendered: ‘God hath thus commanded you
concerning your children: A male shall have as much
as the shar of two female, but if they be female only,
and above two in number, they shall have two-thirds
part of what the deceased shall leave; and if there be
but one, she shall have the half. And the parents of
the deceased shall have each of them a sixth part of
what he shall leave, if he has a child; but if he has no
child, and his parents be his heirs, then his mother
shall have the third part. And if he have brethren, his
mother shall have a sixth part, after the legacies
which he shall bequeath and his debts be paid.
In reading this passage, I have emphasized the
words after the legacies which he shall bequeath and
his debts be paid. This phrase gave rise to two
difficulties in the minds of the Muhammadan jurists.
The first was, whether the circumstance that legacies
were mentioned before debts gave the former
precedence over the latter, in the administration of
the estate of deceased persons; and the second was,
whether the word after related to the devolution of
inheritance, or to the ascertainment of the extent of
the shares to be allotted to the various heirs. The
explanation of Baizawi, one of the greatest
commentators on the Koran, whose views have been
universally adopted by Muhammadan jurists, says that
the word after, as used in the Koran, simply refers to
the balance of the estate after the payment of debts
and legacies, but does not affect the question of
devolution. That this is the interpretation accepted by
the Muhammadan jurists in general is best known by a
passage in Al sirajiyyah, a treatise of the highest
authority on the Muhammadan Law of inheritance,
which Sir William Jones translated about a century
ago; and in citing the passage I cannot do better than
adopt his words: Our learned in the Law to whom God
be merciful say: There belong to the property of a
person deceased four successive duties to the
performed by the Magistrate – first, his funeral
ceremony and burial, without superfluity of expense
yet without deficiency; next, the discharge of his just
debts from the whole of his remaining effects; then
the payment of his legacies out of a third of what
remains after his debts are paid; and lastly, the
distribution of the residue among his successors,
according to the Divine Book, to the Traditions and to
the Assent of the Learned.” I have quoted this
passage to show the priority possessed by the three
charges to which the estate is subject when inherited
by heirs. This order of priority is, as is obvious from
the passage, merely a direction as to the
administration of the estate, and has no bearing upon
the question of the exact point of time when
inheritance devolves upon the heirs. When they
inherit the property, they take it, of course, subjects
to these three prior charges, as they would subject to
mortgages – the difference being (as poined out by
the Privy Council in the case which I have already
cited) that an incumbrance by way of mortgage
follows the property even in the hands of bonafide
purchaser for value, with or without notice of the prior
encumbrance; while the three charges on the estate
of deceased Muhammadan as described in Al
Sirajiyyah cannot do so. It is one thing to sat that
these three charges take precedence of the
inheritance, in the administration of the estate and its
distribution among heirs, and it is another thing to
say that the inheritance itself does not open up until
those charges are satisfied. And it is obvious that all
the arguments adopted by Markby, J., as to debts,
would, according to his hypothesis, necessarily apply
also to funeral expenses and his legacies, which, like
debts of the decased, are charges upon his estate. But
I am unaware of any rule of Muhammadan law which
would render such charges, or even mortgages , an
impediment to the devolution of property on the heirs
by inheritance. Funeral expenses, debts, and legacies,
or any one or more of them may indeed absorb the
estate of the deceased, defeating every succeeding
charge; and it is obvious that if nothing is left for the
heirs they can take nothing. But this is a proposition
widely different from saying that the devolution of
inheritance is suspended till the various charges are
satisfied. Indeed, upon this point, the books of
muhammdan jurisprudence leave no doubt. I have no
doubt in my mind that the devolution of inheritance
takes place immediately upon the death of the
ancestor from the property is inherited.
1. Legal representatives of a deceased Muslim
(i) In the case of the deceased leaves a ‘will’ – his

executor (wasi), to the extent to which the ‘will’ is
valid;
(ii) If he dies intestate (i.e. there is no ‘will’)
(a) the administrator, to whom the Court has
granted the letters of administration; failing whom –
2. When legal representatives can act
It is not necessary for the heirs or administrator

of a deceased Muslim to obtain letters of
administration or for his executor t obtain letters of
administration or for his executor to obtain a probate
of will, if they are doing anything except the
realization of debts.
The legal representatives cannot obtain a decree
or execute a decree for the recovery of debts due to
the deceased, unless they obtain:
(i) a probate of will (if there is a will) or, letters of
administration (if there is no will), or
(ii) a certificate under any of the following Acts, or
Regulations, namely:
(a) Administrator General’s Act 1913;
(b) Indian Succession Act, 1925;
(c) Bombay Regulation, VII of 1827.
3. Functions of legal representatives
All the properties of a deceased Muslim vest in his

legal representatives as such. It is his duty to collect
the assets, discharge the debts, pay the legacies and
distribute the estate amongst the heirs. In case of an
executor, his powers granted by will extend to the
collection of property and debts due to the deceased,
and paying his funeral expenses and debts due by
him. The rest of the estate vests in him as a bare
trustee for the heirs.
4. Power of alienation by heir
Any heir may, even before the distribution of the

estate, transfer his own share and pass a good title to
a bonafide transferee for value, notwithstanding
debts remaining unpaid by the deceased.
But one of several heirs of a deceased Muslim,
though he may be in possession of the whole of the
estate of the deceased, has no power to alienate the
share of his co-heirs, not even to pay off the debts of
the deceased. Such a transfer affects only his own
share, and does not affect the rights of the other heirs
and creditors.
B. Payment of Debts
In Fafri Begum V. Amir Muhammad Khan,

Mahmood, J., laid down three propositions regarding
the paymeny of debts.
Proposition I – when a Muslim dies leaving debts

unpaid, his estate devolves immediately on his heirs,
and such devolution is not suspended till or
contingent upon the payment of debts.
Proposition II – A decree for a debt passed against

such of the heirs as are in possession of the estate
does not bind the other heirs.
Proposition III – If one of the heirs, who was out of

possession and who was not a party to the proceeding
brings a suit against the decree-holder for the
recovery of his share of the estate, he must pay his
proportionate share of the debt before recovering
possession of his share of the inheritance.
Proposition I came under judicial scrutiny in Abdul

Majeeth V. Krishna-Machariar. Mr. Justice Abdur
Rashim (author of the famous Muhammadan
Jurisprudence) approved it and observed:
It is not correct to say that the devolution of the

estate on the heirs does not take place or is postpone
until the funeral expenses and the debts and legacies
have been paid. This is evident from the following
facts: if an heir designated by the law dies after the
death of the propositus, his share descends on his
own heirs and does not lapse to the general estate.
Each heir is entitled to the income that has accrued
since the testator’s death, in proportion to his share,
and he can transfer his share by sale or gift, subject,
it may be, as to the latter form of disposition to such
restrictions as are imposed by the doctrine of Mushna.
“As far back as 1878, the Judicial Committee (of
the Privy Council) in Bazayet Hosien V. Dooli Chand,
held that an heir at law was entitled to alienate his
share in spite of the fact that there were debts of the
deceased still outstanding, and it would not have
been possible to hold that if the inheritance did not
devolve on the heir on the death of the propositus. Mr.
Justice Mahmood in Jafri Begum v. Amir Muhammad
Khan, has fully discussed the question and I do not
think it would be of any use to add anything more to
his reasoning.”
5. Alienation before payment of debt
(i) Any heir may, even before distribution of the

estate, transfer his own share, and pass a good title
to a bona fide transferee for value ,notwithstanding
any debts that might be due from the deceased.
Illustration:
A Muslim dies leaving several heirs. After his

death the whole body of heirs sell the whole of his
estate without paying his debts. After the sale, a
creditor of the deceased obtains a decree against the
heirs for the debts, and applies for execution of the
decree by an attachments and sale of the property in
the hands of the purchaser. He is not entitled to do so.
The reason is that a creditor of a deceased Muslim
cannot fallow his estate into the hands of a bona fide
purchaser for value. (Mulla)
(ii) A sale of the share of an heir in execution of a

decree amounts to a “transfer”, and will pass a good
title to the purchaser.
Illustration:
A Muslim dies leaving two sisters as his only

heirs. After his death, C a creditor of the deceased
obtains a decree against the sister for his debt.
Subsequently, a creditor of the sisters obtain a decree
against them for his debt, and the property of the
deceased which came to the sisters’ hands is sold in
execution of the decree to P. In this case, C is not
entitled to attach the property in the hands of P in
execution of his decree.
(iii) If the share transferred by an heir is a share

in immovable property, and the transfer is made
during the pendency of a suit in which a decree is
passed creating a “charge” on the state, the
transferee will take share of the heir subject to the
charge.
Illustration:
A Muslim died leaving a widow and a son, who was

in possession of the deceased’s properties, for the
payment of her dower debt. The court passed a decree
in favour of the widow. The decree created a charge
on the immovable properties of the estate. But during
the pendency of the execution of the decree, the son
mortgaged his share to M, who later in sued the son
and obtained a decree for sale of the shares
mortgaged to him. The share was sold and was
purchased by P, who had notice of decree. In these
circumstances, P will take the share subject to the
decree in favour of the widow, whose right to claim
unpaid dower cannot be so defeated.
6. Extent of liability of a deceased Muslim is liable

for payment of his debt proportionately to his share in
the estate of the deceased. This liability of heirs,
however, is only up to the extent of the estate of the
deceased.
Illustration:
A Muslim, who is under debt of Rs. 3,200, dies
leaving a widow, a son and daughters. They divided
the estate without paying the debt; the widow taking
1/8, the son 7/16, and each daughter 7/32. The
creditor sues the widow and the son for the whole of
the debt, i.e. Rs. 3,200. But the widow is liable to pay
only (1/8x 3200 = 400) Rs. 400 and the son (7/16 x 200
= 1400) Rs. 1,400. They are not liable for the whole
amount of debt.
7. Suit by the creditor against heirs.
In the absence of an executor or administrator,

the creditor may proceed against the heirs of the
deceased. There is a conflict of opinions as to whether
a decree obtained by a creditor against some of the
heirs of the deceased is binding on the other heirs.
Calcutta. – According to the earlier decisions of

the Calcutta High Court, any creditor of the deceased
may sue any one of the heirs who is in possession of
the whole or any part of the estate, without joining
the other heirs as defendants, to recover the entire
debt. The court was of the view that a creditor’s suit
was an administration suit, and heir in possession of
the estate represented the estate for the purpose of
the suit.
Later on, the same High Court changed its view

and held that the above view cannot be taken if the
heir who was sued was in the possession of the estate
on behalf of the other heirs.
Bombay. – The High Court of Bombay took the

same view in some cases as that of the earlier
decisions of the Calcutta High Court. But later on it
changed its view and held that a sale in execution of a
decree passed against an heir in possession does not
pass to the purchaser the interest of those theirs who
were not parties to the suit even if the heir against
whom the decree was passed was in possession of the
whole estate. (This is in conformity with Allahabad’s
view).
Madras. – In its earlier decisions, the High Court of

Madras fallowed the earlier rulings of Bombay, but
later on adopted the view taken by Allahabad.
Allahabad. – It was held by the allahabad High

Court that a decree relating to debts of a deceased
Muslim passed against his heirs, binds each heir who
is in possession, to the extent of their share in the
estate. But such a decree does not bind other heirs
who are not in possession. This is because each heir in
the law of Islam inherits a separate and well-defined
share. The share of one has no connection with the
share of another. Thus, an heir cannot be said to
represent the estate that has devolved upon the other
heirs.
Nagpur and Oudh. – These Courts have taken the

same view as that of Allahabad High Court.
Thus, by far, Allahabad High Court’s view,

represented well by Jafri Begum’s case, seems to be
correct, yet the Supreme Court alone can resolve this
difference.
The decision in Jafri Begum’s case was referred to

by the Privy Council in Mohd. Kazim Ali Khan v.
Sadiq Ali khan, with apparent approval, and it was
pointed out that it proceeded upon the equitable
principle of the right to contribution as between
co-heirs in respect of the debts of the deceased.
8. Alienation for payment of debts
If there is only one heir of a deceased Muslim, the

heir could validly alienate the whole of the estate he
inherits to satisfy any debt of the deceased. But if
there are several heirs of the deceased and the whole
estate of the deceased is in possession of only one
heir, he has no power to alienate the shares of the
other heirs, even for discharging debts of the
deceased. Such alienation, if made, would not binding
on the other heirs, and could be set aside. The
transfer will take effect only in respect of the share of
the transferor.
This view has the approval of the Privy Council.
In an earlier case the question before the court

was:
“When one of the co-heirs of the deceased

Muhammadan, in possession of the whole estate of
the deceased or of any part of it, sells property in his
possession forming part of the estate for discharging
the debts of the deceased, is such sale binding on the
other co-heirs or creditors of the deceased.
The Court answered this question in the negative.

Delivering the judgement, Abdur Rahim, J., observed:
“The heirs of a deceased Muhammadan take their

shares in severalty, their rights being analogous to
those of tenants-in-common, and not of members of a
joint Hindu Family”.
“There cannot be the slightest doubt therefore

upon the principles of Muhammadan Law and also
upon the authorities that one heir has no right to deal
with the shares of the other heirs.”

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Legal Succession Notes

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LEGAL SUCCESSION

Legal or Intestate succession takes place when a

MUSLIM JURISTS OPINIONS ON INHERITANCE:

“A Muslim upon his death may leave behind him a

Although it is not easy to follow it out in all its

A.Legal Heirs and Sharers

As mere sharer, when there is a son or a son’s

Father’s father, his father and so forth, into whose

3.HALF BROTHERS BY SAME MOTHER:

They take, the absence of children or son’s

When there are no sons, daughters take one ½;

They take as daughters when there is no child;

The mother takes 1/6 when there is a child or

Father’s or mother’s mother, how high soever,

These take as daughters when no children, son’s

9.HALF SISTERS BY SAME FATHER:

They take as full sisters, when there are none,

10. HALF SISTERS BY MOTHER ONLY:

When there are no children or son’s children, how

If no child or son’s child how low soever, she takes

All brothers and sisters are excluded by son, son’s

Residuaries in their own right, being males into

a. A nearer residuary in the above table is

II. Residuaries in another’s right, being certain

III. Residuaries with another, being certain

When there are several residuaries of different or

(a) Distant kindred of Class 1 take according to

CLASS 2. Ascendants: False grandfathers and false

Furthermore, when the sides of relation differ,

CLASS 3. Parents Descendants:

NOTE: Rules (a) and (b) applicable to Class 1, apply

Furthermore, when two claimants are equal in

CLASS 4. Descendants of the two grandfathers and

NOTE: The sides of relations being equal, uncles

GENERAL RULE: Each of those classes as above

NOTE: In cases where there are no shares,

From the above annotations, in consonance with

(1) The twelve shares and the Summary of

(A) Root of the problem;

THE TWELVE (12) SHARERS AND SUMMARY OF

There are 12 persons who inherit as sharers –

The summary of sharers are as follows:

(1) ½ share – five persons

(A) Husband when wife left no son;

(2) ¼ share – Two Persons

(A) Husband – when wife left a child;

(A) Wife – when husband left a child or child

(4) 2/3 shares – four persons.

(A) Two or more daughters of the loins;

(5) 1/3 shares – Two persons.

(A) Mother, when decedent left no child of a

(6) 1/6 shares – Eight (8) persons

(A) Father – when decedent left a child or

When co-existing with full sister if there is no

II. RESIDUARIES AND DISTANT KINDRED

Residuaries, on the other hand are persons for

III. RULES ON EXCLUSION

ARTICLE 23 BASES OF PROHIBITION. - No marriage

The rules of exclusion among heirs may be

RASHID BOOK-MUSLIM LAW: RULES OF TOTAL AND

“Both under Shia and Sunni system, every

(i) partial or imperfect exclusion; and

(i) Partial or Imperfect Exclusion

It may come in two ways