CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA – 800001

[The research paper submitted in the fulfilment of the course, Family Law-II for the
requirement of the degree B.A.LL.B (Hons.) for the academic session 2019-20, Semester-4]

TOPIC - SUCCESSION UNDER MUSLIM LAW

“FAMILY LAW-II”

Sumbitted to: Mrs. Pooja Srivastava Submitted by: Abhimanyu

Professor of law Course: B.A.,LL.B.(Hons.): IV Sem
Roll no.: 1905
 ACKNOWLEDGEMENT

The researcher would like to express his gratitude and regards to his guide and companion
Mrs. Pooja Srivastava for her exemplary monitoring, encouragement throughout the course of
this project. Her blessings and guidance helped to end the long journey of this project.

I would like to acknowledge the support of Saim Imtiyaz, Adarsh kumar (Both) & Khurram
Aziz for helping me to focus on the research work and not distracting me. A lot of time was
left for working in the project, though the short gaps of fun were highly appreciated to take
me away from the boredom.

The researcher would like to acknowledge the consistent prompts of Miss Nilofar Parween
that has led to the conclusion of this project in adequate time. I would have been in the hands
of laziness and would have resulted into undue delay.

In the end, it is also to be considered the support of all the technical and non-technical and
other staffs for providing me an atmosphere to think and to work on this project.

Thank you

Abhimanyu

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 DECLARATION

I hereby declare that the work presented for the B.A., LL.B. (Hons.) course with the name
“Succession under Muslim Law” submitted at Chanakya National Law University, Patna is
an authentic compilation and research work carried under the supervision Mrs. Pooja
Srivastava. This project has not been submitted elsewhere for any degree, diploma or
publication. I take full responsibility for the content and its sources of this project.

Abhimanyu
Chanakya National Law University, Patna

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 TABLE OF CONTENTS

ACKNOWLEDGEMENT 2

DECLARATION 3

TABLE OF CONTENTS 4

CHAPTER I- INTRODUCTION 5

CHAPTER II- RESEARCH METHODOLOGY 9

CHAPTER III- GENERAL PRINCIPLES TO INHERITANCE 10

PRE-ISLAMIC CUSTOMARY PRINCIPLES 10

ISLAMIC PRINCIPLES OF SUCCESSION 10

CHAPTER IV- GENERAL RULES TO INHERITANCE 12

CHAPTER V- HEIRS AND THEIR RESPECTIVE SHARES 14

SHARERS 14
RESIDUARIES 15
DISTANT-KINDRED 16
DIVISION OF SHARES 17

CHAPTER VI- BASIC DOCTRINES 19

DOCTRINE OF REPRESENTATION 19
DOCTRINES OF AUL (INCREASES) AND RADD (RETURN) 20

CHAPTER VII- DISTINCT RULES OF SUCCESSION UNDER SHIA AND SUNNI LAWS 22

SUNNI AND SHIA INTERPRETATION OF QURAN 22

POINTS OF DIFFERENCE BETWEEN SUNNI AND SHIA LAW AS TO SUCCESSION 23

CHAPTER VIII- WOMEN AND INHERITANCE 26

CHAPTER VIII- CONCLUSION 27

BIBLIOGRAPHY 28

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 CHAPTER I- 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.

As far as Muslims are concerned, the law of succession falls into two broad streams, the Shia
law of succession and the Hanafi law of succession. Both these laws of succession form part
of the common law of India and are recognized as having the force of law by virtue of the
Shariat Laws (Application) Act. The primary source of the Muslim law of succession flows
from the Holy Quran. Contrary to popular belief, Quaranic revelations are not the starting
point of Muslim Law. It was in existence even prior to that, but it was systematized,
concretized and modified by the revelations and the traditions of the prophet.1

Islam has laid great emphasis on the importance of property and wealth and has never
considered wealth and welfare as an evil and filthy phenomenon. It has set many regulations
and provisions for acquiring wealth and has laid down certain rules and limitations for its
expenditure and distribution, never considering it as the sole objective of human life or the
final goal of men’s struggle.

As a· matter of fact, wealth is given to a person to test his spiritual strength and his response
to the fulfillment of his obligations towards other human beings. According to Muslim Law,
after the attainment of majority a girl and her brother have equal rights to fulfill their material
needs and manage their own affairs: They have similar rights to hold property, and dispose it
of, as they desire.2

They are free to mortgage it, to give it on lease, or to bequeath it for their own benefit. The
Quran says: “From what is left by parents and those nearest related, there is a share ·for men
and a share for women, whether the property be small or large- a determinate share”3

1
Dr. Poonam Pradhan Saxena, ‘Family Law Lectures II’, (3rd ed), Lexis Nexis Butterworths Wadhwa at page
505.
2
Jafri Begum, Muslim Society in India, Kanishka Publishers, (First edition), P. 23-24.
3
Holy Quran, Surah N, Verse 7.

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In another Quranic verse, it is said: "God (thus) directs you as regards your children’s
(inheritance) to the male 1 portion equal to that of the two females: if only daughters, two or
more, their share is two-thirds of the inheritance; if only one, her share is a half. And to his
(the deceased) parents a sixth share of the inheritance to each, if he have a son, and, if no
children, and the parents are the only heirs, the mother has the third: if the deceased left.
brothers (or sisters), the mother has· a sixth. The distribution in all cases is, after the payment
of legacies and debts; ye know not whether your parents or your children are nearest to you in
benefit. These are settled portions ordained by God; and the God is All-knowing, Al-wise”. 4

It may be noted that when a Muslim dies intestate, his heirs' estate vests ! . in his heirs and no
one is charged with its distribution. There is yet another · view, that the estate of a deceased
may be distributed, even if it is insolvent. 5

Tyabji says: The Muslim law. of inheritance has always ·been admired for its completeness
as well as the success with which .it has achieved the ambitious aim of providing not merely
for the selection of a single individual or. homogenous group of individuals, on whom the
estate of the deceased should devolve by universal succession, but for adjusting the
competitive claims of all the nearest relations. As to the excellence of the system in a formal
sense, Sir William Jones said: I am 1 strongly disposed to believe that no possible question
could occur on the Muhammadan Law of succession which might not be rapidly and
correctly answered.6

The Islamic law of inheritance is often considered an arbitrary scheme based upon the whims
of a Semitic deity. This is a superficial view. On a critical examination of the fabric of the
law, it will be found that the· law consists of two distinct elements: the customs of ancient
Arabia and the rules lay down by the Quran and the Founder of Islam. The Quranic reform
came as a superstructure upon the ancient· tribal law; it corrected many of the social and •
economic inequalities then prevalent; and thus it is another illustration of the profound truth
that the Quran is to be likened to 'an amending act', rather than an exhaustive Code.

Islamic scheme of inheritance discloses three peculiarities:

4
Holy Quran, Surah IV, Verse 11.
5
Aqil Ahmad, Text Book of Mohammadan Law, pp 290-291.
6
Tyabji, Muslim Law, (Third edition), p.316.

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 (i) the Quran gives specific shares to certain individuals;
(ii) the residue goes to agnatic heirs, tand failing them to uterine heirs;
(iii) bequests are limited to one-third of the estate.

The Muhammadan law of succession is totally based on Pre-Islamic customary law of

succession. It is based on the patriarchal form of family. Under Muhammadan law all
properties devolve by succession, so the rights of heirs come into existence only on the death
of the ancestor. The whole property vests in them. Some near cognates are buttressed side by
side with agnates and a female also inherits property and she takes her share absolutely and
without any restrictions. The law of succession is a unique aspect of Muhammedan law,
though it is complicated and not easily understandable yet it is an interesting piece of
Muhammedan Law.

Muhammadan law of inheritance was founded by the Prophet upon republican principles, at a
time when the modem democratic conception of equality and division of property was
unknown even in the most advanced countries of Europe. It provides that, upon the death of
an owner, his property is to be divided into numerous fractions, according to extremely rigid
rules, so rigid as to practically exclude all power of testamentary · disposition, and to prevent
any diversion of the property made even with the consent of the heirs, unless that consent is
given after the owner's death, when the reason is, not that the testator had power to .defect the
law of inheritance, but that the heirs, having become owners of that property, could deal with
it as they liked, and could therefore ratify the act of their ancestor.7

Definitions:

Agnates- An agnate is a relation who is related to the deceased whole through males. Thus,
the following are the examples of agnates, SSSS, SDSSSD, FFFM, FFFFFM.

Cognates- A cognate is a relation who is related to the deceased through one, or more
females. For example, the following are cognates: DS, DD, MF, FMF.

Collaterals- Collaterals are descendants in the parallel lines from the common ancestor or
ancestress. Collaterals may be agnates or cognates. Thus, consanguine brothers and sisters,
7
Gobind Dayal vs Inayatullah, (1885) 7 All.

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paternal aunts and uncles are agnate collaterals. Maternal uncles , aunts, uterine brothers and
sisters are Cognate, collaterals.

Heir - A person who is entitled to inherit the estate of another after his deaths known as an
heir.

True grandfather- A male ancestor between whom and the deceased no female intervenes is
known as the true grandfather. For instance, the father's father, father's father's father and his
father how high so ever are all the true grandfathers.

False grandfather- A Male ancestor between whom and the deceased, a female intervenes is
known as the false grandfather. For instance, mother's father, mother's father, father’s
mother's father are false grandfathers.

True grandmother - A female Ancestor, between whom and the deceased no false
grandfather intervenes are known as the true grand mother. Thus, father’s mother, mother's
mother, father's mother's mother, father's father's mother, Mother’s mother's mother are all
true grandmothers.

False grandmother- A female ancestor between whom and the deceased a false grandfather
intervenes. Thus, mother's father's mother is a false grandmother.

Son's son how low so ever- Lineal male descendants are known as son's son how low so
ever. For instance, son's son, son's son's son and so on, are all son's son how low so ever.

Son's daughter how low so ever- The female children of lineal male descendants are known
as son's daughter how low so ever. Thus, son's daughter, son's son's daughter, and so on, and
also son's daughter how low so ever.

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 CHAPTER II- RESEARCH METHODOLOGY

- AIMS AND OBJECTIVE

The researcher aims to:
 Understand the principles and rules of intestate succession under Muslim Law
 Understand the various doctrine which guides the division of shares.

- RESEARCH QUESTIONS
1. What are the different constituents who derive property under Muslim Law?
2. What are the distinctions between Shia & Sunni intestate succession?

- HYPOTHESIS
1. The Muslim Succession is not gender discriminatory in nature.
2. The Shia rule of Succession is more broader and justified than Sunni Law

RESEARCH METHODOLOGY
In this project, the researcher has relied on the ‘Doctrinal Method’, which is primarily based
upon books, journals, news, articles etc. A comprehensive study is made in order to arrive at
analytical & critical support of the arguments. The segments are structured and written
actively.

LIMITATION OF STUDY
 Researcher has faced time limitation in completion of the project.

MODE OF CITATION
 The researcher has followed a uniform mode of citation throughout the course of
this project.


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CHAPTER III- GENERAL PRINCIPLE TO INHERITANCE
PRE-ISLAMIC CUSTOMARY PRINCIPLES
The four principles of the pre-Islamic law of succession were:
1. The nearest male agnate succeeded to the total exclusion of remoter agnates. Eg, if a
Muslim died leaving behind a son a son of a predeceased son, then the son inherited
the property and the grandson totally excluded.
2. Females were excluded from inheritance: so were cognates.
3. The descendants were preferred over ascendants, and ascendants over collaterals. Eg,
in the presence of a son father could not succeed. Similarly in the presence of father,
brother could not inherit.
4. Where there were more than one agnates of equal degree, all of them inherited the
property and shared it equally.

ISLAMIC PRINCIPLES OF SUCCESSION

The Prophet introduced reforms in the Pre-Islamic customary principles of succession.
Following were modified principles of succession reformed by Islamic law: -
(i) The ascendants, (parents and certain other ascendants) were allowed to inherit
along with the descendants. For. example, if a Muhammadan died leaving behind
a son and a father, both would inherit.
(ii) Females and cognates were also recognized as heirs. For example, I sisters,
daughters and sons daughters as well as daughter's sons were recognized as heirs.
(iii) Relatives by affinity were entitled to inherit For example, the husband and the
wife could inherit to each other.
(iv) The newly created heirs (known as sharers) such as females, agnates and relations
by affinity, inherited the specified shares along with those heirs who were
recognized under Pre-Islamic Customary Principles of Succession.
(v) the newly created heirs inherit the specified shares along with customary heirs,
and not to their exclusion. After allotting the specified share to the newly created
heirs, who are called Sharers, whatever is left (residue) and the scheme is so laid

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 down that something is usually left-goes to the customary heirs who are called
Residuaries.

The Quran did not create a new structure of law of succession, but merely amended and
modified the customary law of succession so as to bring it in conformity with the Islamic
philosophy which recognised those persons who were not heirs under the customary law as
heirs (called sharers or the Koranic heirs) and specific shares have been allotted to them. For
instance, if A, a Muslim, dies leaving behind a widow, W and two sons S and S1, then W will
take 1/8 as a specified share and S and SI will take the residue, i.e., 7/8.

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 CHAPTER IV- GENERAL RULES TO INHERITANCE
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 Qur’an. Hence,
there is a legal share for relatives of the descendents in his estate and property. The major
rules of inheritance are detailed in Qur’an 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

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exclude him. There are two major exclusions, viz. Partial (also known as imperfect)
exclusions and Total (also known as perfect) exclusions. In Islamic law, only relatives with 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:-

1. A fugitive slave who has fled away from his master,

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

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CHAPTER V- 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 Qur’anic 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.

SHARERS
This category is also known as “Dhaw-ul-Faraid”. These are those persons who have a right
to definite shares in assets left by the deceased. These sharers are twelve in number, 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.

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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 sister is entitled to one-half if one, and two thirds if
more.

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.

RESIDUARIES
This category is also known as “Asabat”. 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-u'l-
Fara'id, the whole of the property falls to their share; and If Dhaw-u'I.Fara'id are there to get
their due share, the residue will be taken by the Asabat.

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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-u'l-
Fara'id. 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 paternal uncle.

DISTANT-KINDRED
The last category of inheritors is known as “Dhaw-u’l-Arham”, i.e. relations
connected through blood who are neither sharers nor Residuaries, 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.

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DIVISION OF SHARES

Share
Heir Conditions Exclusion
One Two or more

1/4 NA child or son’s child NA

Husband
1/2 NA no child or son’s child NA

1/8 1/8 child or son’s child NA

Wife
1/4 NA no child or son’s child NA

1/6 NA son or son’s son NA

Father 1/6 plus residue one or more daughters, son’s daughters Father is a sharer and residuary

Residue no child or son’s child Absence of any child

child or son’s child and no father or

1/6 NA Excluded by father or nearer true grandfather
nearer true grandfather

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

Residue Wife or husband and father Converted by father

When there is a child or son’s child or

1/6 NA two or more brothers or sisters or NA
brother or sister and father

Mother When there is no child, nor son’s child

1/3 NA NA
and not more than one brother and sister

When there is a wife or husband and

1/3 plus residue Converted by father
father

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

Paternal Grand When no mother or no nearer Maternal

Mother, Maternal or Paternal grandmother or
Mother (How High So 1/6 NA or Paternal grandmother or father, or
father or true grandfather
ever) nearer true grandfather

Daughter ½ 2/3 When there is no son NA

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 Residue Converted by son or two or more sons

Excluded by son or son’s son of higher grade,

When there is no son or son’s son or one or two or more daughters or two or more
1/2 2/3 or more daughters or higher son’s son’s daughters of higher grade, or one
daughter daughter with two or more son’s daughters or
higher grade

Excluded by son or son’s son of higher grade,

Son’s Daughter
When there is no son or son’s son or one or two or more daughters or two or more
1/6 NA or more daughters or higher son’s son’s daughters of higher grade, or one
daughter daughter with two or more son’s daughters or
higher grade

Converted by son’s son of equal or even

Residue
lower grade

When no child or son’s child or father or Excluded by Son or son’s so, father or true
1/2 2/3
brother grandfather, daughter or son’s daughter
Full Sister
Converted due to full brother or daughters or
Residue
son’s daughters, full sisters

When no child or Son’s child ( How

Excluded by Son, Father, or True
½ 2/3 Low So ever), or father or brother or
Grandfather, or full brother or full sister
full sister

Consanguine Sister
Excluded by one or more daughters or son’s
1/6 NA When one full sister only
daughters or by two or more full sisters

Converted in to Residuary by consanguine

Residue
brother

Excluded by Son or Son’s Son, father or true

Uterine Brother ½ 1/3
grandfather or daughter or son’s daughter

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

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 CHAPTER VI- BASIC DOCTRINES

DOCTRINE OF REPRESENTATION

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. According to the
8
Shia Law, it does pass by succession in some cases. The meaning of the word
‘representation’ is the process whereby one person is said to 'represent' the share receivable
by him through another person, who was himself an heir. The doctrine of representation
however, could be used in a limited way; that is, for deciding the quantum of the share of any
given person, in case he is entitled to inherit.

The concept of principle of representation though totally alien in the Sunni Law is not so in
the Shia Law. A simple illustration will explain this position. The father F dies leaving three
grandsons one by the eldest son and two by the other, as his only heirs. Under the Sunni Law
each of them will inherit as a grandson and shall take one-third. They will take the
inheritance per capita and not per stripes under the Shia Law the grandson by the eldest I son
will get his father's half share while the two grandsons by the other son will get a quarter
each, dividing equally the moiety assigned to their father.9

In Sunni law, even this limited meaning of the term 'representation' is not accepted. The
division among them would be per capita and not per stripes. The right of representation,
l;towever, is recognized to a limited extent to the succession of the cognates. In fact, the more
plausible reason behind the survival of the rule against representation seems to be the fact
that the law of inheritance in Islam is very much connected with the provisions of wills and
gifts, and a defect in one may be corrected by another. Thus, a person who has been adversely
affected by this rule may be compensated by a gift or bequest.

8
Mulla, Principles ofMahomedan Law, 19th edition, p.37.
9
Ameer Ali, Syed, Mahommedan Law, Vol. II, Fifth edition, p.35.

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DOCTRINES OF AUL (INCREASES) AND RADD (RETURN)

In a system of law which assigns fixed shares to heirs, two anomalous situations are likely to
arise: The sum of shares allotted to various heirs according to their entitlement, (i) may be in
access of the unity, or (ii) may be less than the unity. The former situation is solved by the
application of the doctrine of Aul or increase, and the latter by the application of the doctrine
of Radd or return.

Doctrine of Aul or increase

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.

When the sum total of the shares allotted to various heirs in accordance with their entitlement
exceeds the unity, then the doctrine of aul lays down that the share of each heir should be
proportionately reduced. This is done by reducing the fractional shares to be common
denominator. Since this is done by increasing the denominator, the doctrine has been given
the name of increase (aul) though in fact the shares are proportionately reduced. Illustration:
P dies leaving behind her Husband, H, two full sisters, FD and FDl, and Mother M, they will
be allotted the shares as under: H - ½ or 3/6, FD & FD1 - 2/3 or 4/6 and M - l/6. The
proportionate reduction of shares is achieved by increasing the denominator from 6 to 8.
Thus, the shares of the respective shares will be : H will take 3/8, FD & FD1 4/8 and M 1/8.

Doctrine of Radd or return

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

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When there is surplus left after allotting the shares to the sharers in accordance with their
entitlement, and there are no residuaries to take the surplus, then the doctrine of return lays
down that the surplus is to be distributed among the sharers in proportion to their respective
shares. Under Muslim law of modern India, the doctrine of return lays down: (i) the surplus is
distributed among the sharers in proportion to their shares. (ii) But the husband or the wife is
not entitled to return, so long as there is a sharer or distant kindred alive and if there is no
sharer or a distant kindred, then the surplus returns to the wife or husband. Illustration: P dies
leaving behind his mother M, and his daughter D. M takes 1/6 and D takes 1/2.There remains
a surplus of 1/3. Since there is no residuary, 1/3 will return to D and M. M's share will be
increased to 1/4 and D's share to 3/4. This is done by reducing the common denominator.

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 CHAPTER VII- DISTINCT RULES OF SUCCESSION
UNDER SHIA AND SUNNI LAWS

Laws relating to Shias and Sunnis with respect to Succession are different in many respects.
This difference is primarily due to the interpretation of the Quranic provisions and their
incorporation in the already existing system. It must be remembered that the Quranic
revelations did not abrogate the then existing customs and usages, which provided the basic
framework for laws of Succession. Quran provided their modifications by adding to and
amending then existing rules.

The sunnis kept the old framework intact, such as preference to agnates over cognates, and
superimposed the quranic principles on this old setup. The Shias on the other hand, blended
the old rules and the newly laid down rules. They revised the law prevalent under the Arabian
customs and usages, in the light of the newly laid down principles and came out with a
scheme widely different from the one propounded by the Sunnis.

SUNNI AND SHIA INTERPRETATION OF QURAN

The greater part of Mohammedan Law of Succession is founded upon the Koran.
10
Koran did not sweep away the existing laws of successions, but made a great number of
amendments based on a few common principles. These amendments have been differently
interpreted by the Sunnis and the Shias. The leading differences in their interpretations may
be stated as follows:

 The sunnis to some extent allow the principles of the pre-Islamic custom to stand, and
they add or alter those rules in the specific manner mentioned in the Koran and by the
Prophet.

 The Shias deduce certain principles which they consider to underlie the amendments
mentioned in the Koran, and fuse these principles with the principles underlying the
pre-existing customary law, and thus raise up a completely altered set of rules.

10
Murtaza Hussain Khan v. Mohammad Ali Khan, ILR 33 All 532 (PC).

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POINTS OF DIFFERENCE BETWEEN SUNNI AND SHIA LAW AS TO SUCCESSION

1. According to sunni law, there are three classes of heirs namely sharers, residuaries
and distant kindred, whereas under Shia law, there are only two classes of heirs
namely sharers and residuaries, i.e., heirs by consanguinity and heirs by marriage.
2. The sharers, according to Sunni law, exclude residuaries and residuaries exclude the
distant kindred. Under Shia law, the sharers and the residuaries are all jointly divided
into three classes; the first excluding the second from Succession and the second
excluding the third.
3. The sunni law doesnot recognise any Right of Primogeniture, the shia law recognises
it to some extent.
4. Sunni law restricts recognition of the Doctrine of Representation to a few limited
cases; in Shia Law it is the cardinal principle of succession.
5. Without exception, homicide is a bar to succession in Sunni Law, but under Shia
Lawit it is a bar only if it is intentional.
6. Under the Sunni Law both husband and wife can take by return, i.e., where there is
residue. Under the Shia Law only the husband is entitled to return and not the wife.
7. Under the Sunni Law, the doctrine of increase extends to all sharers alike, but it
appliesonly to the daughter and sister among the Shias.

The doctrine of representation is recognised by the Shias but not the Sunnis. According to the
Sunni law, all the Sharers except the husband or wife share in the return and the husband or
wife gets the residue on the total failure of other heirs. But according to the Shias, only the
husband is entitled to return.

Under the Sunni law, there is no distinction between movable and immovable property left by
the deceased. But according to Shia Law, in case a childless widow, there is distinction
between movable and immovable property. A childless widow is not permitted to take any
share in her husband’s immovable property.

According to the Sunni law, if the deceased leaves behind a single daughter and father, the
residue goes to the father; but among the Shias, the residue is divided amongst sharers by
return.

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Under the Sunni law a person can be excluded from inheriting if he has caused murder of the
person from whom, he is to inherit, either intentionally or unintentionally. But according to
the Shia law, such person will be disqualified only if he has intentionally caused the murder,
so under the Shia Law there is distinction between intentional and unintentional homicide so
far as the exclusion of a person from Succession is concerned.

Under Shia law the only restriction upon testamentary power is the one-third rule, but Sunni
law goes further and does not allow any bequest in favour of a legal heir. Under both
systems, however, bequests that infringe these rules are not necessarily void and ineffective;
the testator has acted beyond his powers, but the bequest may be ratified by his legal heirs.

Further protection is afforded to the rights of the legal heirs by the doctrine of death sickness.
Any gifts made by a dying person in contemplation of his death are subject to precisely the
same limitations as bequests, and, if they exceed these limits, will be effective only with the
consent of the legal heirs.

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Sr. No. SUNNI LAW SHIA LAW
1. Priority of agnates over cognates. Deny any priority to agnates over cognates.
Give importance and preference to full
2. Treat all equally.
blood over half blood.
Disregard the details of Sunni system
Give importance to the decisions of the three
3. which rests on the decisions of the three
Caliphs-Abu Bakr, Umar and Usman.
Caliphs-Abu Bakr, Umar and Usman.
Interpret Qur’an as altering the old
Interpret Qur’an 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 in The classification becomes important only
6.
Qur’an. in cases of quantum of shares.
Method of interpreting Qur’an is
7. Method of interpreting Qur’an is literal.
characteristic.
Distant Kindred are postponed in favour of Distant Kindred inherit along with sharers
8.
sharers and Residuaries. and Residuaries.
Doctrine of Aul is applicable to all sharers Doctrine of Aul operates against daughter
9.
alike. and sister only.
Doctrine of Radd does not apply to wife and
husband in presence of any other heirs. Except India, Doctrine of Radd is not
10.
However, in absence of sharers, both get by applicable to wife under any circumstances.
return.
Principle ”nearer in degree excludes
Principle “nearer in degree excludes more
11. remote” applicable to all, without
remote” applicable to only agnatic heirs.
distinction.
Observe such distinction in case of
No distinction between real and personal
12. Childless widow who is not allowed to take
property.
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 Qur’an.

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 CHAPTER VIII- WOMEN AND INHERITANCE

In Islam, women are entitled the right of Inheritance. In general circumstances, 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 Qur'an
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.

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 CHAPTER VIII- CONCLUSION

It can finally be concluded after taking in view the laws of succession in the two branches of
Muslim Law are different in many aspects. Although both Shia law and Sunni law provides
same kinds of rules for succession of property by the heirs but when these rules are delat in
detail, various differences are there.

There is a fundamental divergence between the Sunni and the Shia schemes of succession.
Shia law rejects the criterion of the agnatic tie and regards both the maternal and paternal
connections as equally strong grounds of inheritance. In the Shia system the surviving spouse
always inherits a fixed portion, as in Sunni law, but all other relatives, including females and
non-agnates, are divided into three classes: (1) parents and lineal descendants; (2)
grandparents, brothers and sisters, and their issue; (3) uncles and aunts and their issue. Any
relative of class one excludes any relative of class two, who in turn excludes any relative of
class three. Within each class the nearer in degree excludes the more remote, and the full
blood excludes the half blood.

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 Koran. 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 Muslim law of inheritance, beyond any question, is
the most refined and elaborate system of rules for the devolution of property that is known to
the civilized world.

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 BIBLIOGRAPHY

1. Saxena, Dr. Poonam Pradhan, Family Law Lectures II, 3rd Edition, 2011, lexis Nexis
Butterworths Wadhwa.
2. Diwan, Paras, Muslim Law in Modern India, 9th edition, 2004, Allahabad Law
Agency, law Publishers.
3. Mulla, I., Mulla on Mohammedan Law, 1st edition, 2007, Dwivedi Law Agency,
Allahabad.
4. Ali, Ameer, commentaries on Mohammedan Law, Revised Enlarged 5th edition, 2007,
Hind Publishing House.

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