MUSLIM PERSONAL LAW
-- AN EXPOSITION

BY ATHAR HUSAIN

Published by the All India Personal Law Bpard,
Camp Office, Nawatu Ulama, Lucknow, India

Inheritance

Inheritance is an important branch of the family law of the Muslims. The death of a person brings about a transfer of most of his rights to persons who are called his heirs and representatives. The transferable rights include all rights to property, usufruct, many dependant rights, such as debts and [unrecognisable word] in action, rights to compensation, etc., and the transmissible obligations are those capable of being satisfied out of the estate of the deceased. What is left after the payment of funeral expenses and the discharge of his debts and obligations is to be distributed according to the law of inheritance.

The rules regulating inheritance are based on the principle that the deceased's property should devolve on those who by reason of consanguinity or affinity have the strongest claim to be benefitted by it and in proportion to the strength of such claim. There is no distinction in the Muhammadan law between movable and immovable property or between ancestral or self-acquired property. There is no such thing as a Joint Muslim family nor does the law recognise a[nything] in common [with] a Muslim family.birthright is not recognised and the right of an heir apparent or presumptive comes into existence for the first time [up]on the death of the ancestor to which he would succeed.

According to the Sunni law, the expectant right of an heir-apparent cannot pass by succession to his heir, nor can it pass by bequest to a legatee under his Will, nor can it be the subject of transfer of release.

Obstacles to succession

There are certain impediments to succession: (1) Slavery, because a slave has no right to property. (2) Homicide, a person killing another does not inherit from the latter, (3) Difference of religion, (4) Difference of territorial jurisdiction either natural or constructive.

The Hanafi Law of Succession

The Sunni law recognises three classes of heirs:

(1) Ashabul faraiz --The sharers whose shares or proportions have been fixed in the Quran. They take their specific portions and the residue is then divided among the Agnates.

(2) The Asabah or Agnates, also called by English writers as Residuaries.

(3) Dhauil-arham or Cognates or Uterine Relations. They are also called Distant kindred i.e. relations who do not fall in the category of sharers or Agnates.

The Sharers

The sharers or Ashabul-faraiz are altogether twelve in number - four males and eight females.

The four males are: (1)  the father, (2) the grandfather or lineal male ascendant (when not excluded), (3) the uterine brothers, and (4) the husband.

The females are: [the] (1) wife, (2) daughter, (3) son's daughter or the daughter of a lineal male descendant howsoever low, (4) mother, (5) true grandmother, (6) full sister, (7) consanguine sister i.e. half sister on the father's side, and (8) uterine sister i.e. half-sisters on the mother's side.

The Hanafis divide the ascendants for purposes of succession into two classes viz., true and false. [The] true grandfather is an ascendant in whose line of relationship to the deceased no female intervenes. For example, a father's father is a true grandfather, whereas a mother's father is a false grandfather. A true grandmother is a female ancestor in whose line of relationship with the deceased no false grandfather intervenes. Thus a mother’s mother or a father’s father’s mother are true grandmothers, whereas mother’s father’s mother is a false grandmother.

The shares of the sharers

1. Father: gets 1/6th when the deceased leaves a son or son's son or any other male line descendant.

2. Father's father. or any other lineal male ascendant gets the share of the father i.e. 1/6th. 

3. Uterine brother: When only one, and no child or the child of a son, father or true grandfather...... 1/6th.

When two or more and no child or the child of a son or father or true grandfather ...... 1/3rd.

4. Husband: 
(1) When the deceased leaves a child or the child of a son howsoever low...... 1/4th. 
(2) Without them ...... 1/2 half.

5. Widow : 
(1) When the deceased has left no child or the child of a son -1/4th 
When there is no child or the child of a son-1/8th

6. Daughter : 
(1)  When only one and no son so as to render a residuary - 1/2.
(2) When two or more-2/3rd

7. Sons: 
(1) When only one and no child or sons daughter : son or other male lineal descendant - 1/2. 
(2) When two or more and no child or son's son or other male lineal descendant-2/3. 
(3) When co-existing with one daughter and no son or son's son or other male lineal descendant-1/6. When there are two daughters, the son's daughters are excluded unless there happens to be with them a lineal male descendant of the same or lower degree. The son's daughters or the daughters of any lineal
male descendant are excluded by a son or by a lineal male descendant nearer in degree than themselves. 

8. Mother:
(1) When co-existing with a child of the propositus [the person immediately concerned] or a child of his or her son, or two or more brothers and sisters whether consanguine or uterine-1/6. 
(2) When not-1/3.

9. The grandmother - However high when not excluded by a nearer true female ancestor-1/6.

10. Full sisters - 
(I) When only one and no son or son's son, true grandfather, daughter, son's daughter or brother-1/2.
(2) When two or more and no such excluders-2/3. 

11. Consanguine sisters -- 
(1) When only one and no excluder as above - 1/2.

(2) When one, and co-existing with one full sister-1/6. 

(3) When two or more and no such excluder-1/3. 

12. Uterine sisters - Get the same share as uterine brothers - 1/6.
All these shares are specified in the Quran. If it be found on assigning respective shares of the sharers that total of the shares exceeds unity, the share of each sharer is proportionally diminished by reducing the fractional shares to a common denominator and increasing the denominator so as to make it equal to the sum of numerators.

Asabah or Residuaries

This class of heirs is called asaba or residuaries because they take the residue after such of the sharers as are not excluded have been satisfied. They are divided into three classes: 
(1) Residuaries in their own right;
(2) Residuaries in another’s right, and
(3) Residuaries together with another.

Residuaries in their own right

To this class belong all [the] male relations in the chain of wholerelationship, no female enters. They are divided into four subclasses:

(1) Parts of the deceased, i.e. his sons and grandsons howsoever low.
(2) His roots i.e. the ascendants, his father and true grandfather, how high soever.
(3) The offspring of his father viz. full brothers and consanguine brothers and their lineal male descendants. 
(4) Parts or offspring of the true grandfather, how high soever, i.e., lineal male descendants, however remote, of lineal male ascendants, however remote.

Receiving another's rights

Residuaries in another's right are those females who as sharers are entitled to one-half or two-thirds and who become residuaries if they co-exist with their brothers. For example, if the heirs of a deceased person are his widow, brother and sister, the widow will get one-fourth, and of the remaining three-fourths the brother will get two portions and the sister one portion as residuaries. Residuary together with another is a female heir who becomes residuary because of her co-existing with another female heir, for instance, where there is a sister with a daughter.

If there be no residuary, the residue returns to the sharers by consanguinity in proportion to their shares.

Distant kindred

The next class of heirs are known  as Dhauil-arham or distant kindred. They include the relations who are neither sharers not residuaries; they inherit only if there are no sharers or residuaries. Shafi'is and Malikis do not treat them as heirs at all. The distant kindred are divided into four subclasses:

(1) The offspring of the deceased viz

(a) the children of daughters and their descendants
(b) The children of son's daughters and their descendants howsoever low.

(2) The root of the deceased or his ascendants

(a) Male ascendants however remote, in whose line of relations to the deceased there occurs female and who are therefore called false grandfathers. e. g. [a] deceased's mother's father [or a] father's mother's father. 
(b) Female ancestors technically called false grandmothers.

(3) The offspring of his parents viz. the daughters of full brothers and of full brother's sons, sister's children. 

(4) The offspring of grandparents and other ascendants however remote.

(a) daughter of half paternal uncles by the father.
(b) paternal aunts, full consanguine or uterine and their children.
(c) daughters of full paternal uncles and their sons. 
(d) maternal uncles and aunts and their children. 
(e) paternal uncles by the mother.

The general order of succession is according to their classification, the first class occupying [the] first and so on.

Among the individuals of the various classes, succession is regulated by proximity to the deceased, the nearer in degree always excluding the more remote.

Exclusion

In order to regulate the number of relations who might inherit together, the doctrine of hujub or exclusion is applied.  The son, father, husband, daughter, mother and the wife are never totally excluded. Exclusion is based on two principles. 

(1) A person who is related to the deceased through another is excluded by the latter, for example, the father excludes the grandfather, brother and sister in the sun exclude the grandson and this principle is extended to the residuaries so as to give preference to the proximity of degree, for instance, a son excludes another son's son. Secondly, the closest in blood excludes the others. A relation of full blood always inherits in preference to a relation by the father only. Thus a brother excludes a consanguine brother or sister. There is an exception to the first rule, namely that the mother does not exclude brothers and sisters and the second rule is subject to the exception that uterine relations are not excluded on that ground. 
(2) Exclusion may sometimes be partial. There is also a general rule that when the deceased leaves behind a male and a female heir of the same class and degree, the latter will get half of the former.

Inheritance of the Grandson

A very wrong impression has somehow gained ground that Islam denies [an] inheritance to a grandson. Islam does not deny [an] inheritance to him. [However,] in certain circumstances he is excluded by a nearer heir, like [a] father of the grandson. There are 26 types of situations in which inheritance in varying degrees can reach a grandson and a grandfather. They are given below.

Note: In the columns where it has been recorded that the grandfather will get 1/6th and [the] rest in the presence of daughters and granddaughters, it means that after giving the allotted shares to daughters and the granddaughters, the grandfather will get the rest of the share plus 1/6th of the total inheritance.

2. Where it is written that there is [a] difference of opinion about the share of the grandfather in the presence of real and step-brothers and sisters, it means that the difference of opinion is about the extent of the share and not about the inheritance itself.

3. Where total joint is written in the column of the grandson it means that all [of] the grandsons will get equal shares. This chart will show that a grandfather inherits a grandson in twenty-five eventualities and is excluded only in one situation, i.e., in the presence of the father of the grandson. Likewise a grandson inherits from the grandfather in twenty-five situations and is excluded only in one situation, i.e., in the presence of his father.

It is in one and only one situation that a grandson is excluded from inheritance i.e., in the presence of his father but much has been made by the opponents of the Sharialaw and votaries of a common civil code. 

They voice the following arguments:

(1) A grandson, who is excluded only in the presence of his father, is likened to an orphan and Islam has said so much in support of orphans. The grandson in question is certainly not an orphan and there is [a] big difference between [the] care of orphans in general and [the] right of inheritance [of] a property.

(2) It is said that a grandson has been deprived in the presence of other sons of the grandfather, i. e., uncles of the grandson, and if both the grandfather and the grandson have their own children, they are alike in situation but Islam gives [a] share to a grandfather from the property of the deceased grandson but not vice versa. This also is a fallacious argument [that] is based on wrong assumptions. In Ayat-e-Mirath, the Quran has used the plural word Auladand Abwain. 

Aulad applies to sons as well as to grandsons. Likewise, Abwain applies to [the] father but it equally applies to [the] grandfather. In [the] case [where] the father of a grandson has died, the grandson represents him in the matter of inheritence.

Those interested in detailed arguments may see the brochure of Qazi Abdul Rarzaq Mazahari published by the All India Personal Law Board, Bombay.

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