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MUSLIM LAW OF INHERITANCE



Important terms Heirs (Sunni law)

Descendants - it means the offsprings of a person e.g. sons and daughters. The children of sons and daughters and their children, and so on (up to any degree of descent), are also descendants.

Ascendants - it mean the ancestors of a Person e.g. father and mother. The father and mother of his father and mother are also his ascendants, and so are their parents up to any degree.

Collaterals - a person having a common ancestors with the deceased ( either on the side of the father or mother ) for example : The brother or sister of a deceased.

Agnates - when a person traces his relationship with another wholly through males, he or she is an agnate. His sex or the sex of the deceased Hindu is immaterial. For instance, brother, brother,s son, Son’s son, Son’s son’s son, Father’s father,s father, Father’s mother, Father,s father,s father or mother, son,s daughter etc. are Agnatha. Thus, agnates can be descendants or collaterals.

Cognates - whenever in the relationship of a person with another, a female (or females) intervenes anywhere in the line, one is a cognate to another. For instance, sister’s son and daughters,; daughter’s sons and daughters; mother’s mother and father; Father’s mother’s father and mother; mother’s father’s son and daughters (i.e., maternal uncles and aunts) are all cognates. Thus a cognate may be a descendant, ascendant or collateral.

Full blood - when the father and mother of two persons are the same e.g. ‘real’ brothers and sisters.

Half blood - when two persons have the same father but different mother’s. Also called ‘consanguine’brothers and sisters; they are agnates because they inherit through a male (common father).

Uterine blood - when two persons have the same mother but different fathers. They are cognates because they inherit through a female (common mother).

True/false grandfather - the paternal (agnatic) grandfather between whom and the deceased no female link intervenes is ‘true grandfather.’ The grandfather between whom and the deceased one or more female links intervene is ‘false grandfather’ e.g. father’s mother’s father, mother’s father.

What is Heritable property ??

What is left, after deducting the following items from the property left by a Muslim on his death, is his ‘heritable property’ and it is this property that devolves on the heirs. The items are as follows: funeral expenses, expenses of obtaining probate/ Letters of administration from the court, wages for personal service to the deceased within 3 months of his death, unpaid dower to be paid to his widow, unpaid debts, and legacies.

Under muslim law, every kind of property, which was in the ownership of the deceased at the moment of his death, may be a heritable property.

ENTITLEMENT OF PRIMARY HEIRS UNDER SUNNI LAW

Who are primary (most favoured) Heirs?

There are 12 sharers ( Quranic heirs ) who are entitled to get a prescribed share from the heritable property. Out of these 12 sharers, five sharers (father, mother, husband, wife, daughter) are so uniquely treated that they are always entitled to some shares of the inheritance, and they are in no case liable exclusion. The son is a residuary but the rules of inheritance are so designed that he would always inherits the property. These six persons who if present would not be excluded are the most favoured heirs and ‘Mulla’ rightly calls them “Primary heirs.”

In the absence of primary heirs, their place is taken by their substitutes. The substitutes do not inherit in presence of primary heirs, but do so only in their absence. All heirs who are excluded by the primary heirs are also excluded by their substitutes.

These substitutes are, for the father, a true grandfather, for a child, the child of a son, and for the mother, a true grandmother. The surviving spouse (husband or wife) by the very nature of relationship cannot have a substitute.

Shares of Surviving spouse (Husband/ wife)

It varies depending upon the presence of a child or child of a son.

Widower (Husband of the deceased woman): He takes 1/4 in presence of child or child of son how low so ever and in their absence it is 1/2 of the property.

Widow (wife of the deceased man): she ages 1/8 in presence of child or child of son how low so ever and in their absence it is 1/4 of the property. If the deceased had left more than one window, all the window, all the window share equally out of the 1/4 or 1/8 share, as the case may be.

Shares of father

He takes 1/6 as a sharer in presence of child or child of son how low so ever and in their absence he inherits as a residuary and can take to the extent of total property in absence of any other sharer. The presence of father excludes all brothers and sisters on the basis of the principle of exclusion .

It must be noted that when the only relations entitled to inherit are the father and the daughter, the father will inherit inherit both as a sharer and as a residuary. This is the only case of an heir inheriting two different capacities. At the same time.

Shares of Mother (Three situations)

(i) She takes 1/6 in presence of (a) child or child of son how low so ever, or (b) two or more brothers or sisters, or even one brother and one sister, whether full, uterine or consanguine.

(ii) Her share is enhanced to 1/3 when there is no child of son how low so ever and not more than one brother or sister (if any).

(iii) if mother is with father and there is also spouse (widow or husband) then the mother gets only 1/3 of what remains after deducting the shares of spouse (widow or husband). In this peculiar combination the mother (even without children) does not 1/3 of the whole property because in that case father’s share would become half of the mother which is against the general principal that share of a male should be double the share of a female.

Share of daughter

A daughter inherits as a sharer only in absence of a son. As a sharer, the share of only one daughter is 1/2 and if there are two or more daughters, the share is 2/3 to be divided equally among them. In the presence of the son she does not inherit as a sharer but become a residuary along with him and takes a share equal to half of his share.

Shares of son

The rules governing inheritance are such that although the son always takes as a residuary he would always inherit. When there is no daughter, the son takes the entire residue. When the son is together with a daughter the son gets the double the share of daughter.

RESPECTIVE SHRES OF THE HEIRS

After determining the persons who are entitled to succeed to the property of the deceased, the next issue is the allotment of shares, i.e., which heir will get what amount of shares. For the purposes determining the shares, the heirs are divided into two classes, viz., sharers and residuaries. There is no class corresponding to the ‘Distant kindred’ of Sunni law. There are nine sharer whose shares are already assigned. Among nine sharers three are males and six are females. The first two namely, the husband and wife are heirs by affinity or marriage and the rest are heirs by consanguinity. The descendants of sharers, particularly of daughter, full, consanguine and uterine sister and uterine brother are also sharers. Those heirs who are not included in the class of sharers are all residuaries. The descendants of residuaries are also residuaries. The sharers, their shares and rules relating to allotment of the shares to each of them are as follows:—

1. HUSBAND

(i) without children or lineal descendants, the. Husband’s share is 1/2.

(ii) with children or lineal descendants , the husband’s share is 1/4.

2. Widow

(i) without children or lineal descendants, the widow’s. Share is 1/4.

(ii) with children or lineal descendants, the widow’s share is 1/8.

(iii) A childless widow get her 1/4 share only out of the movable properties of the deceased husband.

3. Father

(i) Without children or lineal descendants, the father inherits as residuary.

(ii) with children, the father’s share is 1/6

4. Mother

(i) In the absence of (a) child or lineal descendant or (b) two or more full or consanguine brother or (c) on such brother and two such sisters or (d) four such sisters with father, the share of mother is 1/3.

(ii) In the presence of (a) child or lineal descendants (b) two or more full or consanguine brothers or (c) one such brother and two such sisters or (d) for such sisters with the father, the share of mother is 1/6.

5. Daughter

(i) Share of single daughter is 1/2.

(ii) share of two or more daughters is 2/3 to be inherited collectively.

(iii) In the presence of son, the daughter becomes residuary.

6. Full Sister

(i) The share of a singe full sister is 1/2 and that of two or more full sisters is 2/3.

(ii) The full sister get the above-mentioned share in the absence of (a) parents (b) lineal descendant (c) full brother (d) father’s father.

(iii) In the presence of (a) full brother and (b) father,s father, full sister inherits as a residuary.

7. Consanguine Sister

(i) The share of a single consanguine sister is 1/2 and that of two or more consanguine sister is 2/3.

(ii) The above share is inherited by consanguine sister in the absence of-

(a) parent (b) lineal descendant (c) full brother (d) full sister (e) consanguine brother and (f) father’s father.

(iii) In the presence of (a) consanguine brother and (b) father’s father, the consanguine sister inherits as residuary.

8. Uterine Brother

(i) The share of one uterine brother is 1/6 and that of two or more uterine brothers is 1/3.

(ii) The above shame is inherited by uterine brother in the absence of -

(a) children or lineal descendants, and (b) parents.

9. Uterine Sister

Same as Uterine Brother

Classification of Heirs (Shia)

Shia divide the entire group of heirs into sharers and residuries. There is no corresponding category to distinct kindred under Shia law.

Sharers

There are nine sharers three of them are males and six are females and include the parents, surviving spouse (husband or wife as the case may be), daughter, full and consanguine sister and uterine brothers and sisters.

The descendants of daughter, full, consanguine and uterine sister and uterine brother are also sharers.

1. Husband

(i) He gets 1/4 when only one heir is present (in presence of a lineal descendant).

(ii) He gets 1/2 in absence of a descendant.

2. Wife

(i) She gets 1/8 when one or more heirs are present (in presence of lineal descendant).

(ii) She get 1/8 when one or more heirs are present (in presence of lineal descendant)

3. Father

(i) He inherits 1/6 in presence of lineal descendant.

(ii) in absence of a descendant he inherits as a residuary.

4. Mother

(i) Her share is 1/6 in presence of lineal descendant or in presence of two or more full/consanguine brothers, or one such brother and two such sisters or four such sisters with the father.

(ii) Otherwise her share is 1/3.

5. Daughter

(i) She gets 1/2 when only one heir is present and 2/3 when two or more heirs are present (in absence of a son).

(ii) With the son she takes as a residuary.

With respect to ‘lineal descendants’ the following rules are applicable :—

Lineal descendants inherit subject to the rule of exclusion (nearer in degree excluding the remoter). For Example, if the deceased leaves behind a son and son of another predecessor son, the son who is nearer in degree to the deceased would exclude the grandson who in his comparison is a remoter lineal descendant.

Where the heirs are the descendants of two or more children but are in the same degree of relationship to the deceased, for the purposes of calculating their shares, the rule representation is applicable. The lineal descendants of one child would take the share that would have been inherited by their respective parent and would divide it almost themselves, males taking a double portion than females

1. Succession among the lineal descendants is per strips and not per capita.

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