LAWS OF INHERITANCE

B.A.LL.B (INTEGRATED LAW DEGREE COURSE)

FAMILY LAW-II (V SEMESTER)

“PROJECT WORK”

“LAWS OF INHERITANCE”

SUBMISSION TO: SUBMITTED BY:

MISS MEENAKSHI DAHIYA RAJAT KAUSHIK

FACULTY OF FAMILY LAW-II 17RU11020

DESIGNATION: ASSISTANT PROFESSOR SESSION:-2017-2022

SEMESTER:-V
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 LAWS OF INHERITANCE

ACKNOWLEDGEMENT

I take this opportunity to express our humble gratitude and personal regards to MISS
MEENAKSHI DAHIYA for inspiring me and guiding me during the course of this project work and
also for her cooperation and guidance from time to time during the course of this project work on
the topic “LAWS OF INHERIYANCE”.

Date of Submission: 23-11-2019

Name of Student: RAJAT KAUSHIK

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 LAWS OF INHERITANCE

INTRODUCTION

Inheritance is the entry of living persons into possession of dead persons ‘property and exists in
some form wherever the institution of private property is recognized as the basis of the social and
economic system. The actual forms of inheritance and the laws governing it, however, differ
according to the ideals of different societies.

The law of inheritance in Islam is based upon five main considerations. First is to break up the
concentration of wealth in individuals and spread it out in society. Secondly, it is to respect the
property right of ownership of an individual earned through honest means. It also considers
hammering in the consciousness of man the fact that man is not the absolute master of wealth he
produces but he is its trustee and is not, therefore, authorized to pass it on to others as he likes. It
also aims to consolidate the family system which is the social unit of an Islamic society and to
give incentive to work and encourage economic activity as sanctioned by Islam.

Prior to Islam, and within the Arabian Peninsula, the system of inheritance was confined to male
descendants. Women not only did not have any share of inheritance, but they themselves were
inheritable too. Siblings from the mother's side, like half-brothers or half-sisters, were
completely excluded. Other Semitic cultures also practiced primogeniture, under which all
property went to the eldest male child.

The Quran introduced a number of different rights and restrictions on matters of inheritance,
including general improvements to the treatment of women and family life. The Quran also
presented efforts to fix the laws of inheritance, and thus forming a complete legal system. This
development was in contrast to pre-Islamic societies where rules of inheritance varied
considerably. Furthermore, the Quran introduced additional heirs that were not entitled
inheritance in pre-Islamic times, mentioning nine relatives specifically of which six were female
and three were male. The laws of inheritance in the Quran also included other male relatives, like
the husband and half-brothers from the mother’s side, which were excluded from inheritance in
old customs. In general, the Quran improved the status of women by identifying their share of
inheritance in clear terms. It also completely forbade the practice of inheriting widows. Joseph
Schacht states that "this is not meant as a regular legal ordinance, but is part of the Quranic
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endeavor to improve the position of women.” The Quran does not explicitly mention the shares
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of male relatives, such as the decedent's son, but provides the rule that the son's share must be
twice that of the daughter's. Muslim theologians explain this aspect of inheritance by looking
at Islamic law in its entirety, which bestows the responsibility and accountability on men to
provide safety, protection and sustenance to women.

In addition to the above changes, the Quran grants testamentary powers to Muslims in disposing
their property, in their will, called “waṣeyya”; Muslims are allowed to give out a maximum of
one third of their property. Muslims are also encouraged to give money to the orphans and poor
if they are present during the division of property.

RECENT DEVELOPMENTS

The Quran contains only three verses which give specific details of inheritance and shares, in
addition to few verses dealing with testamentary power. It has also been reported in Hadith that
Muhammad allotted great importance to the laws of inheritance and ordered his followers to
learn and teach them. Muslim jurists used these verses as a starting point to expound the laws of
inheritance even further using Hadith, as well as methods of juristic reasoning, like Qiyas. In
later periods, large volumes of work have been written on the subject.

This amalgamation of old agnatic customs and Islamic Law led to a number of problems and
controversies that Muslim jurists have solved with great ingenuity. Through the use of deductive
reasoning, Muslim jurists added three additional heirs: the paternal grandfather, maternal
grandmother, and agnatic granddaughter. These heirs, if entitled to inherit, are given their fixed
shares and the remaining estate is inherited by the Residuaries. In some cases, they have also
upheld the rule of men having twice the share of women in circumstances not readily mentioned
in the Quran, and tried to deal with complex cases in a variety of different contexts.

This led to some minor differences between jurisprudence schools of the Sunni maddhabs. Also,
the laws of inheritance for Twelver Shia, despite being based on the same principles, differ in a
number of features due to the rejection of certain accounts of Hadith and based on their
understanding of certain events in early Islam. On the other hand, the system of inheritance of
the Kharajite Ibadis and Zaidis closely resemble that of the Sunni system. In modern Muslim
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countries, usually a mixture of different schools of jurisprudence (including Shia) is in effect, in

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addition to a number of important reforms to the traditional system. The main achievements of
such modern systems were the codification of inheritance laws.

All the modern writers have admired the Muslim system of inheritance for its utility and formal
excellence. Muslim law of inheritance is based on the rules laid down in Quran or through the
customs and usage prevalent among the Arabs. In the pre-Islamic world the law of inheritance
had so many evils in it. Women had been completely denied the share of inheritance. They were
rather regarded as part of the property of the deceased and, therefore, their right to property by
inheritance was out of question. In pre-Islamic Arabia and other countries where there had been
tribal societies not only women were deprived of the right of inheritance but even weak and sick
persons and minor children were given no share in it, as the common principle of inheritance was
that he alone is entitled to inherit who wields the sword. Then in certain societies there had
existed the law of primogeniture and it exists even today in some of the so-called civilized parts
of the world which entitles only the eldest son to inherit the whole of the father's property or to
get the lion's share.

Islam introduced so many reforms in the laws of inheritance for the betterment of Muslim lives
equally. It defined and determined in clear-cut terms for the share of each inheritor and imposed
limits on the right of the property-owner to dispose of his property according to his whim and
caprice. It made the female, who had been previously thought a chattel, the co-sharer with the
male and thus not only restored her dignity, but safeguarded her social and economic rights.
Husband and wife have been made heirs. Parents and ascendants are given rights even when
there is a male descendent. It laid the rules for the break-up of the concentrated wealth in the
society and helped in its proper and equitable distribution amongst a large number of persons. It
gave a death-blow to the law of primogeniture and thus provided the democratic basis for the
division of the property of the deceased.

GENERAL RULES TO INHERITANCE WITH EXCLUSIONS

Inheritance is considered as an integral part of Muslim Law and its application in Islamic society
is a mandatory. Muslims inherit from one another as stated in the Quran. Hence, there is a legal
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share for relatives of the descendents in his estate and property. The major rules of inheritance
are detailed in Quran and Hadith.

Following are the major rules of the Muslim law of Inheritance:-

1. When a Muslim dies there are four duties which need to be performed, viz. Paying
funeral and burial expenses, paying off the debts, execute the testamentary will of the
deceased (which can only be a maximum of one third of the property), and distribute the
remainder of estate and property to the relatives of the deceased according to Shariah
Law. After such expenses, remaining property is considered for distribution. Such
property includes movable as well as immovable properties. There is no distinction
between Ancestral property and Self-acquired property.
2. There is no right of inheritance gained by mere birth. Such right will be a mere chance of
survivorship and the property share. Illegitimate person does not inherit from father or
son. Similarly, child of a divorcee inherits from his mother and not from father. Such
child also will be treated on the same footing of illegitimate person.
3. The allotted share of the property will be allotted immediately after the death of the
ancestor.
4. In case of death of heir on whom the share of property is already vested, such share shall
be passed on to his/her heir. However, if the ancestor (also called as propositus) is alive
and any of his presumptive heirs die, then the share of such deceased heir will not be
passed on to his / her heirs. It would be still the property of the ancestor / propositus,
who is alive.
5. Missing heirs will be given their respective shares if they reappear at the time of such
distribution, or else, they would be considered dead.
6. A child in a womb is deemed to be born on the date of conception and if born alive, such
child will get share or otherwise such share will be distributed among others.

There are exclusions to the rule of inheritance. It is called as rule of total and partial
exclusion. Every person is entitled to inherit under Muslim Law, unless there is something
to exclude him. There are two major exclusions, viz. Partial (also known as imperfect)
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exclusions and Total (also known as perfect) exclusions. In Islamic law, only relatives with
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a legitimate blood relationship to the deceased are entitled to inherit. Thus, illegitimate
children and adopted children have no shares in inheritance. In general, a full brother will
exclude a consanguine brother, but not uterine brother. In case where a deceased man
leaves a pregnant woman, the unborn child's share will be reserved. Also a woman during
the time of waiting (iddat) after divorce is considered as a wife of the deceased for
purposes of inheritance. There are even further rules of exclusion and inclusion of different
relatives. The only "practical situations" which may cause disqualification are differences
of religion and homicide. But schools of Islamic jurisprudence differed whether a Muslim
can inherit from a non-Muslim or not. All the jurists agree that intentional or unjustifiable
killing would exclude a person form inheritance. Four persons cannot get inheritance:-

➢ A fugitive slave who has fled away from his master,

➢ One who has murdered one’s predecessor intentionally or un-intentionally,
➢ One who professes a religion other than Islam,
➢ One living in Dar-ul-Harb cannot inherit the property of one living in Dar-ul-Islam,
and vice versa.

TYPES OF HEIRS AND THEIR RESPECTIVE SHARES

The first step in the distribution of the estate of a deceased Mohammedan after payment of
his mentioned expenses is to allot the respective shares to such of the relations as belong to
the classes of heirs. Hanifa Jurists have divided heirs into 7classes; 3 Principle and 4
Subsidiary Classes. In principle classes, there are Quranic heirs (also called Sharers),
Agnatic heirs and uterine heirs. Subsidiary heirs are Successor by contract, Acknowledged
Kinsman, Sole legatee and the state. There are 5 primary heirs viz, Husband or wife, son,
daughter, father and mother. According to Islam, the heirs have been divided into three
classes.

1. DHAW-UL-FARID:-
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This category is also known as “Sharers”. These are those persons who have a right to
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definite shares in assets left by the deceased. These sharers are twelve in number,
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including four males (father, grandfather, uterine brothers and husband); and eight
females (wife, single daughter, son's daughter, mother, grandmother, full sister,
consanguine sister, uterine sister).
Father's share is one-sixth when the deceased leaves a son or a son's son, but if the
deceased is not survived by a son or grandson his father will, in addition to this share
(one-sixth), also get a share of being 'Asaba.
The grandfather's share is like that of father's share but in three conditions:-According
to Imam Bukhiri and Imam Muslim, the presence of father deprives even the brothers
of their share in the inheritance. But this is not the case with the grandfather. Imam
Abu Hanifa is of the opinion that the presence of grandfather deprives the brother of
his share in the inheritance.
If the father of the deceased is alive, then the share of the mother is of what is left from
the share of the wife of the deceased. The presence of grandfather does not reduce the
share of the mother of the deceased. The grandmother of the deceased has no share in
the presence of the father of the deceased but she has a share in the presence of the
grandfather.
The third set of sharers is uterine brothers and sisters. They are entitled to one-sixth if
their number is one, and one-third if they are more than one.
The husband's share is one-half of the property of the deceased wife if she has no
children, but in case of children it is one-fourth. The wife is entitled to one-fourth if
the husband dies childless; otherwise it is one-eighth.
Real daughter: one-half when alone, and two-thirds if more than one. If the deceased is
survived by a male child also, the daughters are then treated as Asaba and the male
child would get double of what falls to the lot of daughters. The granddaughters stand
on the same level as daughters. But in case the deceased is survived by one real
daughter and one or more than one granddaughter they would get one-sixth. The
granddaughter is not entitled to any share if the deceased is survived by a son, but if he
is survived by grandsons and granddaughters, they would be treated as 'Asaba and the
male grandchild would get double of what goes to the female grandchild. Full sister
gets one-half if she is alone and two-thirds if they are more than one. Consanguine
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sister is entitled to one-half if one, and two thirds if more.

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Mother is entitled to one-sixth when she has a child or grandchild, and in case of being
childless she gets one-third of the share. If the deceased is survived either by paternal
grandmother or maternal grand- mother or even by both, they are entitled to one-sixth.
The grandmother (maternal) is deprived of her share if the mother of the deceased is
alive; and if father is alive the paternal grandmother is deprived of this share.
2. ASABAT:-
This category is also known as “Residuaries”. When the heirs of the first group have
received the respective shares, the residue of the assets falls to the share of those
relatives who are called Asaba which, according to the Shari'ah, implies those relatives
in whose line of relationship no female enters. This is the second group of inheritors.
There is no fixed share of the 'Asabat. If the deceased is not survived by any Dhaw-ul-
Farid, the whole of the property falls to their share; and If Dhaw-ul-Farid are there to
get their due share, the residue will be taken by the Asabat.
Son is the first asabat to get the residue in order of succession. The daughters are
entitled to half of the share as given to the son. The grandsons are not entitled to any
share in the presence of the son. If the son is not living, then the grandson is entitled to
gain share in the inheritance. If there is more than one son, the inheritance will be
distributed equally amongst them.
The father, grandfather and the great-grandfather are included in the category of
Dhaw-ul-Farid. If, however, the deceased is not survived by category of a son,
grandson of great-grandson, then the father will fall under the category of 'Asaba, and,
in the absence of the father, the grandfather assumes that position.
If the deceased is not survived by son, or grandson or father or grandfather, i.e. none
amongst the 'Asabat, then the brother, and in the absence of brother his son, and in the
absence of son, his grandson will be entitled to share in the inheritance as 'Asaba and
the female would also join them in share claiming half of the share as compared with
male.
If unfortunately the deceased is survived by none of the above-mentioned relatives
amongst the 'Asabat, then consanguine brother will be entitled to share in the
inheritance and he will be preferred to full brother's son. Then it comes the turn of full
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paternal uncle
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3. DHAW-UL-ARHAM:-
The last category of inheritors is known as “Distant-Kindred”, i.e. relations connected
through blood who are neither sharers nor Residuary, like relations connected through
females, but it is in extremely rare cases that they get any share in the inheritance. The
following relatives come under this category.
✓ The son of the daughter and daughter of the daughter.
✓ The son of the daughter of the son, and daughter of the daughter of the son and
their children.
✓ Maternal grandfather, maternal grandfather of the father, the grandfather of the
mother, maternal grandfather of the mother, the grandmother of the mother, the
children of the sisters, the sisters of the father and those of the mother, etc.

SHARES OF HEIRS

Share
Heir Conditions Exclusion
One Two or more

When there is a
¼ NA child or son’s NA
child
Husband
When there is no
½ NA child or son’s NA
child

When there is a
1/8 1/8 child or son’s NA
Wife child
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¼ NA When no child or NA
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son’s child

When there is
1/6 NA NA
son or son’s son

When there are

one or more
daughters, son’s Father is a sharer
1/6 plus residue
Father daughters and and residuary
there is no son
nor son’s son

When there is no
Absence of any
Residue child or son’s
child
child

When there is a
child or son’s Excluded by
1/6 NA child and no father or nearer
father or nearer true grandfather
true grandfather

When there are

True Grandfather
Daughters or
1/6 plus residue NA
only son’s
daughters

When there is a
Converted by
Residue Wife or husband
father
and father

When there is a
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Mother 1/6 NA NA
child or son’s
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child or two or
more brothers or
sisters or brother
or sister and
father

When there is no
child, nor son’s
1/3 NA child and not NA
more than one
brother and sister

When there is a
Converted by
1/3 plus residue wife or husband
father
and father

When no mother
Maternal Grand Mother, Paternal
or no nearer
Mother (How 1/6 NA True
Paternal
high so ever) Grandmother
grandmother

When no mother
or no nearer Mother, Maternal
Paternal Grand Maternal or or Paternal
Mother (How 1/6 NA Paternal grandmother or
High So ever) grandmother or father or true
father, or nearer grandfather
true grandfather

When there is no
Daughter ½ 2/3 NA
son
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Converted by son
Residue or two or more
sons

Excluded by son
or son’s son of
higher grade, or
When there is no two or more
son or son’s son daughters or two
or one or more or more son’s
½ 2/3
daughters or daughters of
higher son’s higher grade, or
daughter one daughter
with two or more
son’s daughters
or higher grade

Son’s Daughter Excluded by son

or son’s son of
higher grade, or
When there is no two or more
son or son’s son daughters or two
or one or more or more son’s
1/6 NA
daughters or daughters of
higher son’s higher grade, or
daughter one daughter
with two or more
son’s daughters
or higher grade
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Residue Converted by
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son’s son of
equal or even
lower grade

Excluded by Son
or son’s so,
When no child or
father or true
½ 2/3 son’s child or
grandfather,
father or brother
daughter or son’s
daughter
Full Sister

Converted due to
full brother or
Residue daughters or
son’s daughters,
full sisters

When no child or
Excluded by Son,
Son’s child (
Father, or True
How Low So
½ 2/3 Grandfather, or
ever), or father
full brother or
or brother or full
full sister
sister
Consanguine
Excluded by one
Sister
or more
When one full daughters or
1/6 NA
sister only son’s daughters
or by two or
more full sisters
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Residue Converted in to
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Residuary by
consanguine
brother

Excluded by Son
or Son’s Son,
father or true
Uterine Brother ½ 1/3
grandfather or
daughter or son’s
daughter

Excluded by Son
or Son’s Son,
when no child or
father or true
Uterine Sister 1/6 NA (How Low So
grandfather or
ever) son’s child
daughter or son’s
daughter

DOCTRINE OF AUL

It means the doctrine of decrease. In certain circumstances of allotment of share, it may be

followed that the total of the share exceeds unity. Then the fraction allotted to each heir will have
to be reduced ratably. This doctrine refers to the process of reducing the share proportionately.

This doctrine is recognized by Hanifa law and not by Shia Law.

DOCTRINE OF RADD

It means the doctrine of return. In some circumstances, the total of the fractions may be less than
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unity. There may not be any heir belonging to the residuary to take the residue. In such cases, the
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residue is returned to the sharer in proportion to their share. This is called Doctrine of Radd.
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WOMEN AND INHERITANCE

In Islam, women are entitled the right of Inheritance. In general circumstances, though not all,
Islam allots women half the share of inheritance available to men who have the same degree of
relation to the decedent. For example: - where the decedent has both male and female children, a
son's share is double that of a daughter's. Additionally, the sister of a childless man inherits half
of his property upon his death, while a brother of a childless woman inherits all of her property.
However, this principle is not universally applicable, and there are other circumstances where
women might receive equal shares to men. For example:-the share of the mother and father of a
childless decedent. Also the share of a uterine brother is equal to the share of a uterine sister, as
do the shares of their descendants.

Sometimes woman gets double share then share of man, for example if there are only parents and
husband, husband will receive half, father gets 1/6 and mother gets 2/6. Also the Quran does not
discriminate between men and women in cases of kalalah relation. Kalalah describes a person
who leaves behind neither parents nor children; it also means all the relatives of a deceased
except his parents and children, and it also denotes the relationships which are not through [the
deceased’s] parents or children. Islamic scholars hold that the original reason for these
differences is the responsibilities allotted to spouses. A husband in Islam must use his inheritance
to support his family while a wife has no support obligations. Additionally, Arab society
traditionally practiced the custom of bride price or dower rather than dowry; i.e., the man paid a
gift to his wife or her family upon marriage, rather than the opposite, placing a financial burden
on men where none existed on women. This custom received Islamic sanction.

DISTINCTION BETWEEN SUNNI AND SHIA LAW OF INHERITANCE

Sr. No. SUNNI LAW SHIA LAW

Deny any priority to agnates over

1. Priority of agnates over cognates.
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cognates.
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Give importance and preference to full

2. Treat all equally.
blood over half blood.

Give importance to the decisions of the Disregard the details of Sunni system
3. three Caliphs-Abu Bakr, Umar and which rests on the decisions of the three
Usman. Caliphs-Abu Bakr, Umar and Usman.

Interpret Quran as altering the old

Interpret Quran strictly, keeping rules
4. principles themselves and giving rise to
intact.
new set of principles.

5. Preference to male over female. Both are on equal footing.

Follow strict classification of heirs given The classification becomes important

6.
in Quran. only in cases of quantum of shares.

Method of interpreting Quran is

7. Method of interpreting Quran is literal.
characteristic.

Distant Kindred are postponed in favour Distant Kindred inherit along with
8.
of sharers and Residuaries. sharers and Residuaries.

Doctrine of Aul is applicable to all sharers Doctrine of Aul operates against

9.
alike. daughter and sister only.

Doctrine of Radd does not apply to wife

Except India, Doctrine of Radd is not
and husband in presence of any other
10. applicable to wife under any
heirs. However, in absence of sharers,
circumstances.
both get by return.

Principle ”nearer in degree excludes

Principle “nearer in degree excludes more
11. remote” applicable to all, without
remote” applicable to only agnatic heirs.
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distinction.
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Observe such distinction in case of

No distinction between real and personal
12. Childless widow who is not allowed to
property.
take husband’s immovable property.

Recognize right of eldest son up to

Do not recognize right of elder son getting
13. deceased father’s sword, wearing apparel
preference over younger ones.
and Quran.

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CONCLUSION

The law of succession in India falls within the realm of personal law. Due to this, we have so
many different succession laws, each purporting to reflect the diverse and differing aspirations,
customs, and mores of the community to which the statute in question applies. The primary
source of the Muslim law of succession flows from the Holy Qoran. In addition, the Ijmas, the
Sunnas, and the Qiyas, from all of which rules pertaining to succession can be gleaned.

The Muslim law of inheritance is a superstructure constructed on the foundation of pre-Islamic

customary law of succession. The author of many works on the subject of the Muslim law of
inheritance and a barrister-at-law, who stated that the Muslim law of inheritance, "comprises
beyond question the most refined and elaborate system of rules for the devolution of property
that is known to the civilized world.

To understand the Islamic laws of inheritance as a whole it is necessary to consider the system of
inheritance that operated within the Arabian Peninsula, prior to the revelation of the Quranic
injunctions on inheritance. Although we do not have the exact details of the system that operated
prior to the Quranic revelations we do know that the system of inheritance was confined to the
male agnate relatives ("asaba") of the deceased. In this old customary system only the male
agnates (asaba) were entitled to inherit. Amongst the male agnates there were rules of priority,
which determined which of the surviving male agnates were entitled to inherit. It is likely that
the rules of priority that operate amongst the asaba in Sharia are a carry-over of the old
customary agnatic system. In Islamic law the son takes priority over the father who in turn takes
priority over the brothers who in turn take priority over the paternal uncles.

As we shall see the Quran does not expressly state the share of the male agnate relatives as such,
although it does enact that the share of the male is twice that of a female. The Sunni jurists take
the view that the intention of the Quranic injunctions was not to completely replace the old
customary agnatic system entirely but merely to modify it with the objective of improving the
position of female relatives. The Sunni Islamic law of inheritance is therefore, an amalgamation
of the Quranic law superimposed upon the old customary law to form a complete and cohesive
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system.
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