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MUSLIM LAW
(FAMILY LAW –II)

TOPIC: THE PRINCIPLES OF INHERITANCE UNDER THE

CUSTOMARY AND ISLAMIC LAW

SUBMITTED BY: SUBMITTED TO:

NAME: GANESH OJHA Dr. DEO NARAYANA SINGH
COURSE: B.A. LL.B(Hons.) FACULY
ENROLLMENT: CUSB1613125017 LAW AND GOVERNANCE
SEMESTER : 5TH CUSB
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DECLARATION

This is to certify that the project titled “THE PRINCIPLE OF INHERITANCE

UNDER THE CUSTOMARY AND ISLAMIC LAW” submitted by GANESH
OJHA has been successfully completed under the guidelines of (Proff.) DR. DEO
NARAYANA SINGH, with the help of class notes and text books on Islamic Laws
and further help from online resources including case law reporters.

Date of Submission:-…………………… GANESH OJHA

B.A. LL.B (Hons.)
5th SEMESTER
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CONTENT

1. List of Cases 3
2. Abbreviations and Acronyms 4
3. Acts and Statutes 4
5. Introduction, Research Methodology 5
6. General Principles 5
(a) Customary Principles of Inheritance 5
(b) Islamic Principles of Inheritance 6
7. Fundamental Principles of Islamic Law 6
(a) Rule of Representation
(b) Rule of Exclusion
(c) Rule of Primogeniture
(d) Rule of vested interest
(e) Rule of Spes Successionis
8. Other Governing Principles of Islamic Law 11
9. Distinction between Customary and Islamic Law of Inheritance 16
10. Conclusion 18
11. Bibliography 19
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List of Cases

1. Chedambaram vs. Ma Nyein Me (1928) 6 Rang. 243

2. S. Fateyab Au Meerza v. Union of India AIR 1991 Cal. 205
3. Khanum Jan vs. Jan Bebee (1887) 4 Beng. SDA 210
4. Hasan Ali vs. Nazo ILR 11 All. 456
5. Humeeda vs. Badlun (1872) 17 WR 525
6. Abdul Wahid Khan vs. Nuran Bibi, 12 IA 91
7. Mst. Jawai vs. Hussain Baksh, AIR 1922 Lah. 298
8. Aziz Dar vs. Mst. Fazli AIR 1960 J&K 53
9. Chandrashekharappa vs. Government of Mysore, AIR 1953 Mys. 621
10. Shukurlla vs. Zohar Bibi AIR 1932 All. 512
11. Mazhar Ali vs. Buda Singh (1885) ILR 7 All 297
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ABBREVIATIONS AND ACRONYMS

1. SC…………………………………………………Supreme Court
2. SCC ……………………………………………….Supreme Court Cases
3. A.I.R. ……………………………………………..All India Reporter
4. A.L.J ……………………………………...………Administrative Law Judge

STATUTE

1. THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937

2. THE INDIAN SUCCESSION ACT, 1925
3. THE CASTE DISABILITIES REMOVAL ACT, 1850
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INTRODUCTION

GENERAL PRINCIPLES

1. Customary principles of Inheritance:-

In the pre-Islamic Arabia, the law of inheritance was based on, what is called, comradeship-in-arms,
and, on this basis, even the wife and the children were excluded from inheritance. In the broadest
possible sense, the law of inheritance was based on the principles of agnatic preference and exclusion
of females.

The four basic principles of the pre-Islamic law of inheritance were:

 The nearest male agnate or agnates succeeded to the total exclusion of remoter agnates. Thus,
if a Muslim died leaving behind a son and a son of a predeceased son, then the son inherited
the entire property and the grandson was totally excluded.

For example: - For the property of a person P having two sons A and B, if B died before the
death of P, A would exclude E (who is son of B and remoter to A and B).
 The females were excluded from inheritance and so were cognates. Thus, a daughter or a
sister or a daughter’s son or sister’s son could never succeed to the property.
 The descendants were preferred over ascendants, and ascendants over collaterals. For
Instance, in the presence of a son, father could not succeed. Similarly, in the presence of
father, brother could not inherit.
 Where there were more than one male agnates of equal degree, all of them inherited the
property and shared it equally taking per capita1. For example, if a person died leaving behind
three brothers, all of them succeeded and each took one-third of the estate.

1
Tyabji: Muslim Law, p.554
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2. Islamic principles of Inheritance:-

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. When
the Quran enumerates certain heirs and allots specific shares to them, it does not mean that those
who are not enumerated do not get any share. It is significant to note that the Muslim Personal Law
(Shariat) Application Act, 1937 specifically refers to ‘special property of females’. By this provision
the Act meant to abolish all those anti-women customs contrary to the Muslim law in this regard that
were in vogue in certain regions of the country and among certain sections of the community.

The Prophet recognized the right to inheritance of the following members of the Muslim family as:

 The husband and the wife being equal are entitled to inherit to each other.
 Some near females and cognates are also recognized and enumerated as heirs.
 The parents and certain other ascendants are made heirs even when there are descendants.
 The newly created heirs (those who were not entitled to inherit under customary law) are
given specified shares.
 The newly created heirs inherit the specified shares along with customary heirs, and not
to their exclusion. After allotting the specific shares to the newly created heirs, who are
called sharers, whatever is left (residue) goes to the customary heirs who are called
Residuaries.

RESEARCH METHODOLOGY: -

For the purpose of research on the topic of ‘Principles of Inheritance under customary and Islamic
Law’ various text books as well as web references have been referred. All informations regarding
the topic have been further modified according to class lectures in respective subject.

FUNDAMENTAL PRINCIPLES OF INHERITANCE UNDER ISLAMIC LAW:-

1. RULE OF REPRESENTATION

Doctrine of representation is a well-known principle recognized by the Roman, English and Hindu
laws of inheritance. Under the principle of representation, the son of a predeceased son represents
his father for purposes of inheritance. It may be explained with the help of the diagram given below.
P has two sons A and B. A has got two sons С and D and В has a son E.
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В pre-deceases P, i.e. В dies before the death of P. Under the doctrine of representation, E will
represent his pre-deceased father В and would be entitled to inherit the properties of P in the same
manner as В would have inherited had he been alive at the time of P’s death.
Validity under Islamic law: Islamic law does not recognize the doctrine of representation. Under
Muslim law, the nearer excludes the remoter. Accordingly, in the illustration given above, E will be
totally excluded from inheriting the properties of P. Under, both Shia law as well a Sunni law, E has
no right to inherit the properties of P and the surviving son will get the whole property
The Muslim jurists justify the reason for denying the right of representation on the ground that a
person has not even an inchoate right to the property of his ancestor until the death of that ancestor
and thus, there can be no claim through a deceased person in whom no right could have been vested
by any possibility if he had been alive.
But, the Shia Law accepts the principle of representation just as a cardinal principle for the purpose
of ascertaining the heirs such as:
(a) What persons are entitled to inherit?
(b) The quantum or the share of any given person on the footing that he is entitled to inherit.
For example: - P being Shia Muslim leaves two grandsons A and B from his predeceased son Z,
and also one grandson F from his pre-deceased son Z. Here as rule of representation applies among
Shias, the division shall be per stirpes and accordingly A and B will both get 1/2 while F alone shall
get 1/2. If the estate were to be divided per capita (in case where A had been a Sunni Muslim) the
three grandsons will get 1/3rd each.

2. RULE OF EXCLUSION

According to the rule of exclusion, certain persons are disqualified to inherit the property of another
person. Such persons though heirs are excluded from inheritance due to certain disablements
imposed on them by Muslim Law. These impediments or disabilities are personal and are known as
grounds of exclusion. These grounds, according to Muslim Law, are as follows:

1. Homicide:-
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(a) Sunni Law: - Under Sunni Law, a person who causes the death of a person is not entitled to
inherit the property of that person no matter whether the death was caused intentionally or by
accident.

(b) Shia Law: - Under Shia Law, the murderer of a person is disentitled to inherit him only when the
death is caused intentionally.

2. Illegitimacy:-

(a) Shia Law: - Under Shia Law, an illegitimate person, being the child of none, is disqualified to
inherit both his mother and father.

(b) Sunni Law: - Under Sunni Law, an illegitimate child is entitled to inherit his mother but not his
father.

3. Slavery: -

This impediment to inheritance has been abolished and has no place in Mohammedan Law as it is
administered in India. The bar of slavery has been abolished by the Abolition of Slavery Act, V of
1843.

4. Difference of religion: -

Under Islamic Law, a non-Muslim could not inherit from a Muslim; but the Caste Disabilities
Removal Act of 1850 removes such exclusion from inheritance from a deceased Muslim on the
ground of mere difference of religion whether due to apostasy or otherwise. The estate of a Hindu
converted to Islam and dying a Muslim is subject to Muslim Law.

CASE LAW: Chedambaram vs. Ma Nyein Me2

In this case, it was held that a Hindu wife and children are entitled to the property of her husband
who had converted to Islam and thereby, having a Muslim wife and children. His property would
governed by Muslim Law.

5. Difference of allegiance or country, not recognized in India: -

With the end of Muslim rule in India, this ground of exclusion lost significance.

6. Estoppel in succession: -

2
(1928) 6 Rang. 243
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A person who first denies his relationship with the propositus cannot be allowed subsequently to
turn his back and claim inheritance when succession opens. Denial of relationship operates as
estoppel in succession.

7. Doctrine of exclusion of (Hujab): -

This doctrine consists of a set of three rules which govern inheritance and exclude certain heirs by
recognizing the preferential claims of certain other heirs. These are as follows: -

Rule 1: A person who is related to the propositus through another is excluded by the presence of the
latter.
For example, A has two sons X and Y. Y dies leaving heritable property. Now X cannot claim
inheritance on the basis of his being brother of the deceased, because his relationship with Y arises
through A, their father and hence the presence of A excludes X.
Rule 2: Within the limits of each class of heirs, an heir nearer in blood excludes the more remote.
For example, A has a son P and a grandson X from P. P being nearer in blood will exclude X. The
daughter, though she is nearer in degree, does not exclude the brother’s son or his son. Thus, if the
surviving relations be a daughter and brother’s son, the daughter takes 1/2, and the brother’s son
takes their residue. The, reason is that the daughter in this case inherits as a sharer, and the
brother’s son a residuary.
Rule 3: A person excluded may exclude others. According to this rule, the person who himself is
excluded from inheritance may affect the share of others, i.e., he will not be supposed to be non-
existing for excluding others.
8. Exclusion of daughters from the right of inheritance.

Under the Muslim law, daughters are given the right of succession. However, this rule is not
absolute. Under the customary law, a daughter may be excluded from the right of inheritance as
sharer in the presence of her brother and subsequently considers as residuary for the purpose of
inheritance.

3. RULE OF PRIMOGENITURE

The rule of primogeniture states that if a person has several sons, the eldest son has a preferential
claim over the estate of the deceased father. Generally this rule is not recognized by Mohammedan
Law. The Shia sect, however, recognizes the exclusive right to the eldest son of such articles of the
father as his wearing apparel, Quran, ring, sword, arms, the mantle and horse.
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CASE LAW: S. Fateyab Au Meerza v. Union of India3

In this case, Nawab married with a Jewess woman. Two sons were born out of wedlock. The Calcutta
High Court held that on death of the Nawab unless succession to Nawabship is finally decided by
competent court, the brother of deceased Nawab could not claim title on the basis of law of
primogeniture and on allegations that both sons have renounced Islam.

4. RULE OF VESTED INHERITANCE

The term ‘vested inheritance’ means the share of inheritance that vests in the heir immediately on
the death of the propositus (whose property is claimed). On the death of a person, the property vests
in his heirs though the actual distribution according to the shares of each heir may take place after
sometime. Thus vesting of inheritance is the first and foremost stage in the devolution of property
to the legal heirs of a person. Thus, there are two main stages in the devolution of the property of a
deceased person as: -

(1) Vesting of inheritance- The moment a person dies, all his right and interests in the property
terminate and the property stands vested in the heirs.

(2) Distribution of inheritance - Vesting of property takes place immediately on the death of the
propositus, but it takes a fairly long time to effect the actual distribution of the property due to the
following reasons: -
(i) Determination of heritable property, which in itself is a long process.
(ii) Determination of exact shares of each heir, and
(iii) Obtaining the necessary certificates from the court.

Rights of heirs before distribution: -

(a) If an heir dies before the actual distribution of the property, the property will pass to his heirs
on the basis of the rule of vested inheritance.

(b) Any heir may, even before the distribution of the estate, transfer his share to a bona fide purchaser
for value. The heir will pass a good title and creditor cannot follow the estate in the hands of such
purchaser4. The only conditions are that he must be: (i) a bona fide purchaser, (ii) he must purchase
the property for value, and (iii) he must not have the notice of the debts.

3
AIR 1991 Cal. 205
4
I.L.R.4Cal.402(P.C.)
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5. RULE OF SPES SUCCESSIONIS

The cardinal principle of Mohammedan law is that the succession for the first time opens on the
death of the propositus. Before his death nobody can claim any right in the property on the basis of
his being the heir apparent. Hence during the life time of a person all that an heir apparent has is a
mere chance of inheriting i.e., spes successionis. (Spes=hope of; successionis=succession, i.e., mere
hope of succession).

In Khanum Jan vs. Jan Bebee5, It has been held that a mere spes successionis or a mere chance of
succession, cannot be the object of a valid transfer or release.

For example- A who has a son B makes a gift of his property to C. Now B alleging that the gift was
procured by undue influence sues C in A’s life time on the basis of his rights to succeed to property
on A’s death (i.e., spes successionis). It was held that the right of B being a mere succession, he has
no cause of action, for he is not enttitled to any interest in A’s property during A’s life time 6. But
the gift would be liable to be set aside if the suit was brought after A’s death provided it was brought
within the period of limitation. In this case, the right claimed by B is mere spes Successionis i.e., an
expectation or hope of succeeding to A’s property if B survived A. The Mohammedan Law does not
recognize any interest expectation of the death of another, and till that death occurs, he possesses no
right at all.

OTHER GOVERNING PRINCIPLES OF ISLAMIC LAW

(1) Nature of the Heritable Property (mal):

Heritable property is that property which is available to the legal heirs for inheritance. After the
death of a Muslim, his properties are utilized for the payment of funeral expenses, debts and the
legacies i.e. wills, if any. After these payments, the remaining property is called heritable property.
Under Muslim law, every kind of property may be a heritable property.

For purposes of inheritance, Muslim law does not make any distinction between corpus and usufruct
or, between movable and immovable, or, corporeal and incorporeal property. Under English law,
there is some difference in the inheritance of movable and immovable property.

5
(1887) 4 Beng. SDA 210
6
Hasan Ali vs. Nazo ILR 11 All. 456
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But, under Muslim law there is no such distinction; any property, which was in the ownership of the
deceased at the moment of his death, may be the subject-matter of inheritance.

Shia Law:
Under the Shia law, a childless widow is entitled to get her share (1/4) in the inheritance only from
the movable property left by her deceased husband.

(2) Joint or Ancestral Property:

The concept of a joint family or of coparcenary property (as is recognized under Hindu law) is not
known to Muslims. Whenever a Muslim dies, his properties devolve on his heirs in definite share of
which each heir becomes an absolute owner. Subsequently, upon the death of such heir, his
properties are again inherited by his legal heirs, and this process continues.

Thus, unlike Hindu law, there is no provision for any ancestral or joint-family property. Accordingly,
under Muslim law of inheritance, no distinction has been made between self-acquired and ancestral
property. All properties, whether acquired by a Muslim himself or inherited by his ancestors, are
regarded as an individual property and, may be inherited by his legal heirs.

(3) No Birth-Right:
Inheritance opens only after the death of a Muslim. No person may be an heir of a living person
(Nemo est heres verentis). Therefore, unless a person dies, his heirs have no interest in his properties.
Unlike Hindu law, the Muslim law of inheritance does not recognise the concept of ‘right by birth’
(Janmaswatvavad).

Under Muslim law, an heir does not possess any right at all before the death of an ancestor. It is only
the death of a Muslim which gives the right of inheritance to his legal heirs.

As a matter of fact, unless a person dies, his relatives are not his legal heirs; they are simply his heir-
apparent and have merely a ‘chance of succession, (spes successions). If such an heir-apparent
survives a Muslim, he becomes his legal heir and the right of inheritance accrues to him. If the heir-
apparent does not survive a Muslim, he cannot be regarded an heir and has no right to inherit the
property.

(4) Per-Capita and Per-Stirp Distribution:

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Succession among the heirs of the same class but belonging to different branches may either be per-
capita or per-stirps.
(a) In a per-capita distribution, the succession is according to the ‘number of heirs’ (i.e. heads).
Among them the estate is equally divided and therefore, each heir gets equal quantity of
property from the heritable assets of the deceased.
(b) On the other hand, in a per stirp distribution, the several heirs who belong to different
branches, get their share only from that property which is available to the branch to which
they belong. In other words, in the stirpital succession, the quantum of property available to
each heir depends on the property available to his branch rather than the number of all the
heirs.
Under Sunni law, the distribution of the assets is per-capita and so, an heir does not in any respect
represent the branch from which he inherits. The per-capita distribution may be illustrated by the
following diagram.

M has got two sons A and B. A has three sons, S1, S2 and S3. В has two sons S4 and S5. When M
dies there are two branches of succession, one of A and the other of B. Suppose, A and В both die
before the death of M so that the sole surviving heirs of M are his five grandsons.
Now, under the per-capita scheme of distribution (as recognised under Sunni law) the total number
of claimants (heirs) is five and the heritable property would be equally divided among all of them
irrespective of the branch to which an heir belongs.
Therefore, each of them would get 1/5 of the total assets of M. It may be noted that under Sunni law
the principle of representation is recognised neither in the matter of determining the claim of an heir,
nor in determining the quantum of share of each heir.
Shia Law:
Under the Shia law, if there are several heirs of the same class but they descend from different
branches, the distribution among them is per stirp and thus, the quantum of property inherited by
each of them depends upon the property available to that particular branch to which they belong. In
the above-mentioned illustration, A and В constitute two branches, each having 1/2 of M’s property.
Both, A and В pre-decease M. But, the quantum of property available to each of their branch would
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remain the same. Therefore, the surviving heirs of A namely, S1, S2, 53 would get equal shares out
of 1/2 which is quantum of property available to the branch of A. Thus S1, S2 and S3 would get 1/6
each. Similarly, the quantum of property available to the branch of В is also 1/2 but the descendants
from this branch are only two. Accordingly, the 1/2 property of В would be equally shared by S4 and
S5.Therefore, 54 and S5 would get 1/4 each.

(5) Female’s Right of Inheritance:

Males and females have equal rights of inheritance. Upon the death of a Muslim, if his heirs include
also the females then, male and female heirs inherit the properties simultaneously. Males have no
preferential right of inheritance over the females, but normally the share of a male is double the share
of a female.
In other words, although there is no difference between male and female heir in so far as their
respective rights of inheritance is concerned but generally the quantum of property inherited by a
female heir is half of the property given to a male of equal status (degree).
The principle that normally the share of a male is double the share of a female has some justification.
Under Muslim law, while a female heir gets (or hopes to get in future) an additional money or
property as her Mehr and maintenance from her husband, her male counterpart gets none of the two
benefits. Moreover, the male heir is primarily liable for the maintenance of his children whereas, the
female heir may have this liability only in an extraordinary case.

(6) A Child in the Womb:

A child in the womb of its mother is competent to inherit provided it is born alive. A child in embryo
is regarded as a living person and, as such, the property vests immediately in that child. But, if such
a child in the womb is not born alive, the share already vested in it is divested and, it is presumed as
if there was no such heir (in the womb) at all.

(7) Step-Children:
The step-children are not entitled to inherit the properties of their step-parents. Similarly, the step-
parents too do not inherit from step-children. For example, where a Muslim H marries a widow W
having a son from her previous husband, the son is a stepson of H, who is step-father of this son.

However, the step-brothers (or sisters) can inherit each other’s properties. Thus, in the illustration
given above, if a son (or daughter) is bom out of the marriage of H and W, the newly born child
would be a step-brother (or sister) of the son from wife’s previous husband.
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These sons or daughters are competent to inherit each other’s property. The step-brothers or sisters
may either be, uterine or consanguine. Muslim law provides for mutual rights of inheritance between
uterine and consanguine brothers or sisters.

(8) Simultaneous Death of two Heirs:

When two or more persons die in such a circumstance that it is not ascertainable as to who died first
(i.e. who survived whom) then, both of them cease to be an heir for each other. In other words, where
two or more heirs die simultaneously and, it is not possible to establish as to who died first then
under Muslim law, all the heirs are presumed to have died just at one moment. The result is that such
heirs are regarded as if they did not exist at all; the inheritance opens omitting these heirs.

For example, A and В are each other’s legal heirs in such a manner that after the death of any one
of them, the surviving person would inherit the property of the deceased one. But, both A and В die
simultaneously say, in an aero plane crash, and it could not be established as to who survived whom.
Under Muslim law, neither A would inherit В nor В would inherit A.Thus, the legal heirs of A would
inherit A’s property as if there was no В at all. Similarly, the heirs of В would inherit B’s property
as if A did not exist at all?

(9) Missing Persons:

According to the texts of Hanafi law, a missing person was supposed to have been dead only after
ninety years from the date of his birth; till then the inheritance of his properties did not open. But,
now this rule has been superseded by Sec. 108 of the Indian Evidence Act, 1872 which provides as
under:
“When the question is whether a man is alive or dead, and it is proved that he has not been heard of
for seven years by those who would naturally have heard of him if he had been alive, the burden of
proving that he is alive is shifted to the person who affirms it”.
Accordingly, where a Muslim is missing for at least seven years and if it could not be proved that he
(or she) was alive then, that person is legally presumed to be dead and the inheritance of his (or her)
properties opens.
It has been held by the courts that Hanafi rule of ninety years of life of a missing person was only a
rule of evidence and not any rule of succession; therefore, this Hanafi rule must be taken as
superseded by the provisions of Indian Evidence Act 1872.7

7
Mazhar Ali vs. Buda Singh (1885) ILR 7 All 297
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(10) Escheat:
Where a deceased Muslim has no legal heir under Muslim law, his properties are inherited by
Government through the process of escheat. State is regarded as the ultimate heir of every deceased.

(11) Marriage under the Special Marriage Act, 1954:

Where a Muslim contracts his marriage under the Special Marriage Act, 1954, he ceases to be a
Muslim for purposes of inheritance. Accordingly, after the death of such a Muslim his (or her)
properties do not devolve under Muslim law of inheritance. The inheritance of the properties of such
Muslims is governed by the provisions of the Indian Succession Act, 1925 and Muslim law of
inheritance is not applicable.

DIFFERENCE BETWEEN SUNNI LAW AND SHIA LAW OF INHERITANCE

The significant point of difference between the two systems may be following:

1. Murderer: Under Sunni law, a person who causes the death of the propositus either intentionally,
negligently or accidentally is excluded from inheritance.
Under Shia law, a person may not be excluded from inheritance if he has not caused
death intentionally.
2. Illegitimate Child: Under Sunni law, a illegitimate child is entitled to inherit the properties of the
mother.

Under Shia law, illegitimate child is treated as mullivs filius and is not entitled to inherit any property
either from father or from mother

3. Child in the womb: Under Sunni law, where the child in womb totally excludes other heirs, then
the whole estate must be reserved and where the child in womb excludes only some heirs after paying
the shares of those heirs which are not excluded rest must be reserved whereas under Shia law, the
share of true sons must always be reserved.
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4. Movable or immovable property: Under Sunni law, a childless widow inherit 1/4 out of movable
as well as immovable property whereas under Shia law such widow inherits 1/4 only from the
movable property.

5. Principle of Representation: Under Sunni law, principle of representation is not recognized. So,
son of a predeceased son is excluded whereas under Shia law, this doctrine is recognized and the
son of a predeceased son represents his father.

6. Preference of Agnates to cognates: Under Sunni law, agnatic heirs has been given preference
over cognate heirs whereas under Shia law, the agnates and cognates have been placed on equal
footing.

7. Classes of heirs: Under Sunni law, there are three classes of heirs, they are as (a) Sharers, (b)
Residuaries and (c) Distant kindreds whereas under Shia law, the classification of heirs is only two,
they are as (a) Sharers, and (b) Residuaries.

8. Sharers: Under Sunni law, there are twelve sharers whereas under the Shia law, number of Sharers
are only nine.

9. Doctrine of Increase (Aul): Under the Sunni law, doctrine of Increase, the excess share is
deducted from the shares of all the heirs in proportion of their normal shares whereas under Shia
law, doctrine of Increase, the excess is deducted only from the shares of daughter or sister.

10. Doctrine of Return: Under Sunni law, doctrine of Return, all the surviving heirs, except husband
or widow, participate in return of the excess property whereas under Shia law, besides husband or
widow, in certain cases the mother and uterine brother or uterine sister also do not participate in
return.

11. Per Capita and Per Stirp: Under Sunni law, succession among the heirs of one class but of
different branches is per capita whereas under Shia law, succession among the heirs of a class but
belonging to different branches is per stirps.

12. Theory of Propinquity: Under Sunni law, the rule that nearer excludes the remoter is applied
only in respect of agnatic heirs whereas under Shia law, the rule of nearer excludes the remoter is
applicable to all the classes of heirs.

13. Doctrine of Primogeniture: Under Sunni law, Doctrine of primogeniture is not recognized and
an eldest son has no preferential right in respect of any property.
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CONCLUSION

The Customary Law of Inheritance is still governing major part of the Islamic law and thus, it can
be concluded that super-Imposition of the Quranic principles on the customary law of inheritance
has led to divergence of opinion among the Shias and the Sunnis, resulting in the propagation of two
different rules of inheritance which has been explained by Tayabji as the fundamental difference
between Shia and the Sunni law of inheritance as:

(1) The Sunnis allow the framework or principles of the pre-Islamic customs to stand and, they
develop or alter those rules in the specific manner mentioned in the Quran and by the Prophet.

(2) The Shias deduce certain principles which they hold to underlie the amendments expressed
in the Quran and fuse the principles so deduced with the principles underlying the pre-existing
customary law, and thus raise up a completely altered set of principles and rules derived from them.

It can also be concluded that the Islamic Law has well worked to improve the conditions of women
and children providing them with share during succession and has also added such relatives for the
purpose of inheritance like husband and wife, females and cognates to some extent.

But, the Islamic Law is still indifference to those heirs who just loses their share only because of
being remoter in degree than the other heir like in the case of a grandson whose father has died
before his grandfather. The grandson is subsequently is not allowed to inherit the property of his
grandfather. It is due to non-acceptance of doctrine of representation in Islamic Law which is
accepted in Hindu and other communities’ laws.

Thus, the Islamic law being complete in itself regarding the rule of succession and inheritance but
still it has scope for further improvement so as to reduce indifference made based on gender and rule
of exclusion to the extent of betraying reasonable classes of heirs from inheritance.
 19

BIBLILGRAPHY

BOOKS:

1. Aqil Ahmad ,( Mohammedan Law, 26th Edition, Central Law Agency, Allahabad, 2016)
2. Asaf A.A. Fyzee, (Outlines of Muhammadan Law-by Tahir Mahmood, 5th Edition,
Oxfort University Press, New Delhi, 2013)
3. Mulla, D.F., (Principles of Mohammedan Law, 16th Edition, Butterworth,2001)
4. Fyzee, A.A.A, (Relevance of Muhammedan Law in Twentieth Century, Cambridge Law
Journal, 1963)

ONLINE RESORCES

(1.) WWW.INDIANKANOON.ORG (LAST VISITED: 5TH NOVEMBER, 2018)

(2.) WWW.MANUPATRA.COM (LAST VISITED: 4TH NOVEMBER, 2018)
(3.) WWW.WIKIPEDIA.ORG (LAST VISITED: 6TH NOVEMBER, 2018)
(4.) WWW.LAWOCTOPUS.COM(LAST VISITED: 7TH NOVEMBER, 2018)