Family Law

INHERITANCE

Name : Khuba Abbasi

Course : B.A.LLB (H) Self finance
Semester : 4th
Roll Number : 22

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 INDEX

1. Acknowledgement………………………... 3
2. Introduction …………………………… 4
3. Inheritance …………………………….. 6
4. General Rules of Inheritance ………… 7
5. Inheritance by Shia Law ……………… 12
6. Sunni Law of Inheritance …………….. 14
7. Rule of Radd/Return ………………….. 18
8. Principle of Aul/Increase ……………… 19
9. Sunni Law Cases ………………………. 20
10. Shia Law Cases ………………………... 21
11. Conclusion ……………………………... 22
12. Bibliography………………………………… 23

Acknowledgement

I would like to express my special thanks of gratitude to my teacher Prof. (Dr.) Kahkashan Y. Danyal

who gave me the golden opportunity to do this wonderful project on the topic “INHERITANCE”, which

also helped me in doing a lot of research and I came to know about so many new things. I am really

thankful to her.

Secondly, I would also like to thank my parents and friends who helped me a lot in finalizing this

assignment within the limited time frame.

- Khuba Abbasi

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Introduction

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 When a Muslim dies there are four duties which need to be performed. These are:

1. payment of funeral expenses

2. payment of his/ her debts

3. execution his/ her will

4. distribution of remaining estate amongst the heirs according to Sharia.

Muslims must follow all the commandments of Allah (SWT) as Allah the Almighty says,
"It is not for a believer, man or woman, when Allah and His Messenger have decreed a
matter that they should have any opinion in their decision. And whoever disobeys Allah
and His Messenger, has indeed strayed into a plain error." [Quran 33:36]

The particular importance of the Islamic laws of inheritance is obvious from the verses
immediately following those verses giving specific details on inheritance shares, "These
are limits (set by) Allah (or ordainments as regards laws of inheritance), and whosoever
obeys Allah and His Messenger will be admitted to Gardens under which rivers flow (in
Paradise), to abide therein, and that will be the great success and whosoever disobeys
Allah and His Messenger, and transgresses His limits, He will cast him into the Fire, to
abide therein; and he shall have a disgraceful torment." [Quran 4:13-14]

The laws of inheritance are put on a noticeable position in Islam because of the restriction
placed by Sharia on the testamentary power of the testator.
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.
1 Tyabji, The Sunni Islamic law of inheritance is therefore, an amalgamation of the
at pp.821-825
2 Tyabji, at p.820.
3 Tyabji, at p. 829.
4 Fyzee at p.390
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  Principle of Aul/Increase:

The principle of Aul is not recognized in Shia law of inheritance and Shia scholars have expounded rules
to avoid its application.19 In Sunni law, whenever the calculated shares of heirs of a deceased are
increased from the supposed shares of that estate, the supposed shares are increased to match the number
of the calculated shares. In this manner, each sharer gets what is prescribed for him/her in the Quran in
terms of numbers, though the actual amount/quantity of his/her share is reduced. 20 As it is not possible to
avoid situations which attract the application of principle of Aul, Shia jurists have devised an innovative
manner to resolve such situations. They have divided the sharers of a deceased into those whose share is
susceptible to reduction and those whose share is not liable to reduction. They have placed daughters
and sisters into the first category taking into account the fact that their prescribed shares (one half and
two thirds) could be reduced in those situations where there is a male counterpart who converts them
into residuaries. On the other hand, there are other sharers, e.g. parents, spouse and uterine sister, whose
share is minimally prescribed in the Quran which could not be reduced from that minimal amount in any
case. So, if there are heirs from both these categories and their calculated shares are increased from the
supposed shares, the heirs of the second category will have their prescribed shares, while the heirs of the
first category will bear the burden of avoidance of application of the principle of Aul.
Let us explain this in an illustration. A female dies leaving behind her husband and two sisters. The
husband’s prescribed share in such a situation is 1/2, while two sisters’ 2/3. If we solve this proposition,
the husband will be entitled to 3/6 and the sisters 4/6. So, according to Sunni law, the Aul will be applied
to make the husband’s share 3/7 and the sisters 4/7. But Shia law resolves it differently by proposing that
the husband should be given 3/6 as his prescribed share is not susceptible to reduction, while the sisters
will jointly inherit 3/6 instead of 4/6 as their share can be reduced to circumvent the application of Aul.
Cases
Sunni Law

Abdul Matin v. Abdul Aziz21

The facts of the case may be briefly stated as follows : One Abdul Gafur owned 4 kathas of land. After
his death, the land was partitioned by his heirs in the year 1937. On partition, his two daughters namely,
Salimon Nessa and Halimon Nessa got 1 K-3'Ls of land. Halimon Nessa sold away her half share in the
5 AIR 1931 Mad 553.
6 AIR 1998 Pat 1.
7 2004 AIR Kant HCR 2886.
8 2003 AIHC 3538 (AP).
9 Verma, at pp.408-10.
10 Ibid.
11 Verma, at p.391.
12 Carroll, The Ithna Ashari Law of Intestate Succession, p.86
13 Verma, Mohammaden Law in India and Pakistan, p.371.
14 Ameer Ali Comentaries on Mahommedan Law, p.1088.
15 Ibid at p.1112.
16 Mulla, Principles of Mohamedan Law, p.90.
17 Carroll, The Ithna Ashari Law of Intestate Succession, p.93-94.
18 Purohit, The Principles of Mohammedan Law, p.467.
19 Ameer Ali Commentaries on Mohammedan Law, p.1123.
20 Fyzee, Outlines of Mohammadan Law, p.331.
21 AIR 1990 Gau 70.
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said land to her sister Salimon Nessa by registered sale deed on 24-1-40. Salimon Nessa thus became
absolute owner of IK-3Ls of land on and after the said sale on 24-1-40. Halimon Nessa died sometime in
1951 leaving behind her son, the plaintiff Abdul Matin as her sole heir. Later in 1953, Salimon Nessa
also died without any issue leaving behind her husband Kitab Ali, and her sister's son Abdul Matin, the
defendant No. 6. Kitab Ali, thereafter by a deed of gift dated 25-11-54, gifted the entire land belonging
to his wife to one Abdul Latif, who later sold the same to the defendant No. 5. The defendant No. 5 thus,
claimed title of the said land by virtue of purchase from Abdul Latif.

The court in this case held that the husband will get only half share of the land belonging to his wife ‘B’
and the other half will devolve on the plaintiff, sister’s son of the deceased who was a distant kindred.
Here, husband is only ‘sharer’ and so he will get 1/2of the share in the property as a share. Hence, there
is no residuary so the residue will not revert to the husband but it will go to the sister’s son as a distant
kindred.

Ali Sahib v. Hajra Begum22

In this case the Mysore High Court had to consider the question as to when the husband or the wife, as
the case may be, is entitled to inherit the other's property as residuary. In this case a Muslim had died
leaving behind his wife and two daughter's daughters, the daughter having pre-deceased him. The wife
had gifted her husband's entire property to her brother's son but the daughter's daughters claimed, being
distant kindreds, 3/8 share each in the properties as residuaries. The Court held that when a Hanafi
Mahomedan dies leaving a husband or wife and there are no residuaries the husband or wife, as the case
may be take their full share and the residue is divided among distant kindred.

Rukmanibai v. Bismillabai23

In the instant case an appeal was filed before the Madhya Pradesh High Court under section 348 of the
Succession Act, 1925 against the order where certificate was issued to the respondent daughter for the
debts and securities left by deceased. The Court held that the daughter was entitled to her share (1/2) as a
sharer, but as there was no residuary so the residue would also revert back to her. Thus, under the
circumstance the grant of succession certificate to the respondent was not illegal.

Shia Law

Aga Mahomed Jaffer Bindanim v. Koolsom Beebee24

In this case the Privy Council had to deal with issues arising out of the administration of the deceased
husband’s estate. The testator’s nephew, the plaintiff in that case, had been appointed as the executor and
trustee of the estate. Along with other instructions, the plaintiff had been instructed to pay the

22 AIR 1968 Mys 351.

23 AIR 1993 MP 45.
24 1897 25 Cal 9.
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respondent’s dower amount and any inheritance which she would be entitled to under Muhammadan
law. One of the questions before the Privy Council was: whether a widow, under Shia law, was entitled
to a share from land and the value of building upon that land. In accordance with this question, one of
the arguments put forth by the counsel of the respondent, who had relied on the concept of Fatawa
Alamgriri, was that the principle of non- inheritance of a childless Shia widow only applied to the extent
of agricultural land. The Privy Council rejected this argument, and held that the widow of the testator
was not entitled to any share in the immovable property of her husband.

Abdul Hamid v. Piare Mirza25

This case is concerned with ethe concept of distribution of property. The rule is that if the deceased left
only one heir the whole property would devolve upon that heir, except in the case of a wife. If the only
heir be a wife, the older view is that she is entitled to no more than her Quranic share which is 1/4 th and
the surplus passes to the Imam, now to the Government of India. But in this case Ameer Ali’s opinion
was followed which is that there being no machinery now to take Imam’s share, the surplus should pass
to the wife.

Conclusion

The Islamic law of inheritance is a structure constructed on the foundations of pre-Islamic customary
law of succession. Succession starts only on the death of the deceased, and then only the property vests
in the heirs. Whenever a female inherits property, she takes her share absolutely and without
restrictions. The Muslim law of inheritance is a unique aspect of Islam. It helped shape to the current
form of Islamic algebra and it is a different, just system of law. Prophet Muhammad (PBUH) said:

‘LEARN THE LAWS OF INHERITANCE AND TEACH THEM TO THE PEOPLE, FOR THEY ARE ONE-
25 AIR 1935 Oudh 78.
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HALF OF USEFUL KNOWLEDGE.’

The Islamic law of inheritance has always been admired for its completeness as well as the success with
which it has achieved the aim of not only providing estate for a single individual, but for adjusting claim
for all the nearest relations.

Bibliography

Books Referred:

i. Asaf A. A. Fyzee, Outlines of Muhammadan Law (Oxford Univ Pr (Txt); 5 edition (30 September
2008).
ii. M. Hidayatullah and Arshad Hidayatullah, Mulla Principles of Mahomedan Law, (Lexis Nexis
Butterworths Wadhwa Nagpur; Nineteenth edition (2010)).
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iii. V.P. Bharatiya (Editor), Syed Khalid Rashid's Muslim Law, (Eastern Book Co; 4th Revised edition
edition (20 April 2004).
th
iv. F.B. Tayyabji, Muhammadan Law ( 4 edn., Bombay: N.M. Tripathi Private Ltd., 1968).

v. Dr. Paras Diwan, Muslim Law in Modern India, (8th Edition,Reprint 2008).