Muslim Law of Inheritance

LAKSHMI NARAYANA.B ,
II Addl.Senior Civil Judge,
Kakinad.

“Law and order are the medicine of the body politic and when the body politic gets sick,
medicine must be administered.”------------Dr.B.R.Ambedkar.

“Learn the laws of Succession and teach them to people, for they are onehalf of the useful
knowledge”----------Prophet Mohammed.

Intruduction:
we are aware that we are in constitutional civilized society, but we have no uniform civil
code regarding Law of Inheritance to all the citizen of India. Every religion practiced in India
is governed by its respective personal laws – which includes property rights as well. In our
religious societies, inheritance represents the most important method of transferring wealth
from one generation to the next. Islam is the religion in which every aspect of life is being
discussed and managed no matter what’s the issue in the life of human beings. We can say
that Islam is the complete code of life. Religion Islam organizes a Muslim’s life by issuing
many rules and laws which guarantee an honorable and happy life for each Muslim. Even a
cursory examination of the laws governing inheritance in most Islamic countries discloses a
set of complicated rules that are difficult to understand and, consequently, apply. The courts
are kept busy trying to untangle the morass, and their rulings hardly satisfy the litigants,
usually siblings, who invariably feel that they were unfairly treated by the deceased father or
mother.
The Hanafi and Shia schools:
The Islamic Law of inheritance is a combination of the pre-Islamic customs and the
rules introduced by the Prophet. Whatever is left after the death of a Muslim is his heritable
property. This property can be movable or immovable and ancestral or self-acquired.
However, Muslims in the country do not have codified property rights and are broadly
governed by either of the two schools (sects) of the Muslim personal law – the Hanafi
(Sunni)and the Shia. While the Hanafi school (Hanafi school of Sunni Sect) recognises only
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those relatives as heirs whose relation to the deceased is through a male. This includes son's
daughter, son's son and father's mother. The Shia school(sect), on the other hand, favours no
such discrimination. This means that heirs, who are related to the deceased through a female
are also accepted. The estate of a deceased Muslim devolves on his heirs separately and the
heirs are entitled to hold the property as tenants-in-common, each having a definite share in
the property.

The Muslim Law of Succession is a combination of four sources i.e. the Holy Quran,
Sunna (practice of prophet), Ijma, (Consensus of the learned men of the community over the
decision over a particular subject matter), Qiya (deductions based on analogy on what is
right and just in accordance with good principles). Muslim law recognises two types of
heirs, firstly, sharers, the ones who are entitled to certain share in the deceased’s property
and secondly, Residuaries, the ones who would take up the share in the property that is left
over after the sharers have taken their part. Under the Indian legislative scheme, the rules
that govern inheritance under the Muslim law depend on the kind of property involved. In
cases of Non testamentary succcession, the Muslim Personal Law (Shariat) Application Act,
1937 gets applied. On the other hand, in case of a person who dies testate i.e. one who has
created his will before death, the inheritance is governed under the relevant Muslim Shariat
Law as applicable to the Shias and the Sunnis. Needless to say, the rules set out in the Quran
are not applied correctly if at all. In fact what is applied is the hadeeth and Sunnah which are
invariably the sources of the interpretations of the schools of jurisprudence. The Islamic
scholars, as usual, ignored the Quran, misconstrued the Prophet's words and misinterpreted
his intent thereby rob-bing the inheritance laws of their flexibility and, not least, of their
equability.

Source of Muslim Law of Inheritance from the Qur'an:

"You know not who among your children and parents are nearest to you in
benefit. This is the law of God. Indeed, God is Wise and all-Knowing."
(Quran 4:11)----Allah Almighty says in Holy Quran.
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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. The Qur'an
introduced a number of different rights and restrictions on matters of inheritance, including
what were at that time general improvements to the treatment of women and family life.
The Qur'an also presented efforts to fix the laws of inheritance, and thus forming a complete
legal system. Furthermore, the Qur'an introduced additional heirs that were not entitled
inheritance in pre-Islamic times, mentioning nine relatives specifically of which six were
female and three were male. The laws of inheritance in the Qur'an also included other male
relatives, such as the husband and half-brothers from the mother’s side, who were excluded
from inheritance in old customs. The heirs mentioned in the Qur'an are the mother, father,
husband, wife, daughter, brother who shares the same mother, full sister, sister who shares
the same mother, and consanguine sister. The Qur'an does not explicitly mention the shares
of male relatives, such as the decendents's son, but provides the rule that the son's share
must be twice that of the daughter's. Muslim theologians explain this aspect of inheritance
by looking at Islamic Law in its entirety, which bestows the responsibility and
accountability on men to provide safety, protection and sustenance to women. One
explanation of why a daughter is entitled to only half that of the son is that Islam decrees
that women, upon marriage are entitled to a "dowry (dowr and also mehr)" from the
husband (in addition to any provision by her parents). It is thereafter the husband's
obligation to care for and maintain his wife and the "dowr(dowr)" is, therefore, essentially
an advance of inheritance rights from her husband's estate which returns to his possession
after the formalities over.
In addition to the above changes, the Qur'an grants testamentary powers to Muslims
in disposing their property. In their will, called waṣeyya, Muslims are allowed to give out a
maximum of one third of their property. Muslims are also encouraged to give money to the
orphans and poor if they are present during the division of property. Law in its entirety,
which bestows the responsibility and accountability on men to provide safety, protection and
sustenance to women.
The Qur'an contains only three verses, which give specific details of inheritance and
shares, in addition to few verses dealing with testamentary power. Muslim jurists used these
verses as a starting point to expound the laws of inheritance even further using Hadit, as
well as methods of juristic reasoning, like Qiyas. This amalgamation of old agnatic customs
and Islamic Law led to a number of problems and controversies that Muslim jurists have
solved in different ways. Through the use of deductive reasoning (Qiyas), Muslim jurists
added three additional heirs: the paternal grandfather, maternal grandmother, and agnatic
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granddaughter. These heirs, if entitled to inherit, are given their fixed shares and the
remaining estate is inherited by the residuaries (ʿaṣaba). In some cases, they have also
upheld the rule of men having twice the share of women in circumstances not readily
mentioned in the Qur'an, and tried to deal with complex cases in a variety of different
contexts. This led to some minor differences between jurisprudence schools of the Sunni
mabbhabs. Also, the laws of inheritance for Twelver Shia, despite being based on the same
principles, differ in a number of features due to the rejection of certain accounts of Hadith
and based on their understanding of certain events in early Islam.

Schools of Islamic jurisprudence:

The rules that are applied in most Islamic jurisdictions are derived from the
madhahib or Sunni schools of Islamic jurisprudence, Abu-Hanifa, Ash-Shafe'i, Ibn-Hambal
and Maalik. These are the four major schools; there are several minor ones including the
Zaydiya, the Ja'fariya and the Wahaabiya which is applied in Saudi Arabia. Most Sunni
Islamic jurisdictions apply one or the other of the four major schools. Egypt applies Abu-
Hanifa while Turkey has abandoned Islamic law in favour of Swiss family relations statutes;
it co-opted the entire Swiss law. Iran and other Shi'a jurisdictions follow their own schools'
understanding of the ahadeeth their jurists deem applicable. The Islamic scholars, as usual,
ignored the Quran, misconstrued the Prophet's words and misinterpreted his intent thereby
rob-bing (robbing) the inheritance laws of their flexibility and, not least, of their equability.
Abu-Hanifa Sunni schools of Islamic jurisprudence :
The Hanafi School is one of the four major schools of Sunni Islamic legal reasoning
and repositories of positive law. It was built upon the teachings of Abu Hanifa, a merchant
who studied and taught in Kufa, Iraq, and who is reported to have left behind one major
work, Al-Fiqh al-Akbar. Two of Abu Hanifa’s disciples, Abu Yusuf and al-Shaybani,
compiled and organized their master’s teachings, which were favored and followed by the
Abbasid dynasty. While the Hanafi madhab, along with other Sunni schools, utilizes qiyas
(analogical reasoning) as a method of legal reasoning, Abu Hanifa himself relied extensively
on ra’y (personal opinion). Hanafi doctrines have always been considered among the most
flexible and liberal in Islamic law, including in the areas of criminal law, treatment of non-
Muslims, individual freedoms, marriage and guardianship, and ownership and use of
property. Officially adopted by the Ottoman Turks in the 16th century and codified in the
Mejelle, Hanafi jurisprudence remains the most influential school in the world today and is
used in Jordan, Lebanon, Pakistan, Syria, Turkey, and the United Arab Emirates. Most
widespread school in Islamic law, followed by roughly one-third of the world's Muslims.
First school to formulate contract rules for business transactions involving resale for profit
and payment for goods for future delivery.
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Ash-Shafe'i Sunni schools of Islamic jurisprudence:
The Shafi‘i madhhab was spread by Al-Shafi‘i students in Cairo, Mecca and
Baghdad. It became widely accepted in early history of Islam. The chief representative of
the Iraqi school was Abu Ishaq al-Shirazi, whilst in Khorasan, the Shafi‘i school was spread
by al-Juwayni and al-Iraqi. These two branches merged around Ibn al-Salah and his father.
The Shafi‘i madhhab was spread by Al-Shafi‘i students in Cairo, Mecca and Baghdad. It
became widely accepted in early history of Islam. The Shafi'i school is based upon the
theories of the Islamic theologian Abu Abdullah ash-Shafi'i (767- 820). He was from 804
until 810 a student of Malik, the founder of one of the other schools. The Shafi`i school is
followed throughout the Ummah, but is most prevalent in Kurdistan, Egypt, Yemen,
Indonesia, Thailand, Singapore, Philippines, Sri Lanka, Palestine, Syria and is the school of
thought officially followed by the government of Brunei Darussalam and Malaysia. It is
followed by approximately 15% of Muslims world-wide. The Shafi`i school of
jurisprudence is based on Qur'an (Koran), the Sunnah of the Prophet, Ijma' (the consensus
of the scholars), the opinions of the Prophet's companions (mostly Al-Khulafa Ar-Rashidun,
the first four caliphs accepted by Sunni Muslims) and Qiyas (though he is known to have
significantly limited the scope for using qiyas in deriving Islamic law). His most famous
books are Ar-Risalah and Al-Umm.
Ibn-Hambal Sunni schools of Islamic jurisprudence:
The Hanbali school is named after the Iraqi scholar Ahmad ibn Hanbal, who was a
disciple of Imam Shafii. Until the emergence of the House of Saud in the Arabian Peninsula,
the school did not enjoy any patronage or support from a serious political force. Indeed, its
legitimacy was not always accepted. Today, it is regarded as the smallest of all the Sunni
schools of jurisprudence, found mainly in Saudi Arabia and Qatar. Although Hanbali is the
most conservative of the Sunni schools, it is considered liberal in most commercial matters.
‘Conservative’ here refers to adherence to a strict interpreta-tion of Islam through a literal
understanding of the Koran and Hadith. Wahhabism, which is one of the strictest and most
influential movements within Sunni Islam, is rooted in the Hanbali school. After Mohamad
ibn Abdul Wahhab , Ibn Taymiyyah was one of the most notable and controversial Hanbali
scholars. His strict beliefs are thought to have had a considerable influence on contemporary
Wahhabism and Jihadism.The Hanbali school recognizes as sources of law the Koran,
Hadith, fatwas (decrees) issued by the prophet’s companions, the opinions of individual
companions, traditions with weaker chains of transmission or lacking the name of a
transmitter in the chain, and qiyas when absolutely necessary. The school encourages
independent reasoning (ijtihad) through the study of the Koran and Hadith. It also rejects
taqlid, or blind adherence to the opinions of other scholars, and advocates a literal
interpretation of textual sources.
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Maalik Sunni schools of Islamic jurisprudence :
The Maalik school is one of the four major madhhab of Islamic jurisprudence within
Sunni Islam. It was founded by Malik ibn Anas in the 8th century. The Maliki school of
jurisprudence relies on the Quran and hadiths as primary sources. Unlike other Islamic
fiqhs, Maliki fiqh also considers the consensus of the people of Medina to be a valid source
of Islamic Law. The Maliki madhhab is one of the largest group of Sunni Muslims, comparable to
the Shafi’i madhhab in adherents, but smaller than the Hnafi madhhab. Sharia based on Maliki
doctrine is predominantly found in North Africa (excluding northern and eastern Egypt), West
Africa, Chad, Sudan, Kuwait, Bahrain, the Emirate of Dubai (UAE), and in northeastern parts of
Sauidi Arabia. In the medieval era, the Maliki school was also found in parts of Europe under
Islamic rule, particularly Islamic Spain and the Emirate of Sicily. A major historical center of
Maliki teaching, from the 9th to 11th centuries, was in the Mosque of Uqba of Tunisia. The Malikis
enjoyed considerably more success in Africa, and for a while in Spain and Sicily. Under the
Umayyads and their remnants, the Maliki school was promoted as the official state code of law, and
Maliki judges had free rein over religious practices; in return, the Malikis were expected to support
and legitimize the government's right to power.This dominance in Spanish Andalus from the
Umayyads up to the Almoravids continued, with Islamic law in the region dominated by the
opinions of Malik and his students. the Maliki has been able to retain its dominance throughout
North and West Africa to this day. Additionally, the school has traditionally been the preferred
school in the small Arab States of the Persain Gulf (Bahrain, Kuwait and Dubai). While the majority
of Saudi Arabia follows Hanbali laws, the country's Eastern Province has been known as a Maliki
stronghold for centuries.
When a Muslim dies there are four duties which need to be performed.
They are:
1. Pay funeral and burial expenses.
2. Paying debts of the deceased.
3. Determine the value / will of the deceased (which can only be a maximum of one
third of the property).
4. Distribute the remainder of estate and property to the relatives of the deceased
according to Shariah Law.

Different types of heirs:

Heirs referred to as primary heirs are always entitled to a share of the inheritance,
they are never totally excluded. These primary heirs consist of the spouse relict, both
parents, the son and the daughter. But under certain circumstances, other heirs can also
inherit as residuaries, namely the father, paternal grandfather, daughter, agnatic
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granddaughter, full sister, consanguine sister and mother. Those who inherit are usually
confined to three groups:

1. Quota-heirs (dhawu al-farāʾḍ), usually include daughters, parents, grandparents,

husband and wife/ wives, brothers and sisters, and others. This group usually take a
designated share or quota of the estates.
2. Members of the ʿaṣaba (residuaries), usually a combination of male (and sometimes
female) relatives that inherit as residuaries after the shares of the Quota-heirs is
distributed.
3. In case a person leaves no direct relatives and there is no ʿuṣaba, his property
escheats to the state treasury (Bayt al-mal),

Sharers:
The Sharers are 12 in number and are as follows: (1) Husband, (2) Wife, (3) Daughter, (4)
Daughter of a son (or son's son or son's son and so on), (5) Father, (6) Paternal Grandfather, (7)
Mother, (8) Grandmother on the male line, (9) Full sister (10) Consanguine
sister(11)Uterinesister,and(12)Uterinebrother.
The share taken by each sharer will vary in certain conditions. For instance,
➢ a wife takes ¼th of share in a case where the couple is without lineal
descendants, and a one-eighth share otherwise.

➢ A husband (in the case of succession to the wife's estate) takes a half share
in a case where the couple is without lineal descendants, and a one-fourth share
otherwise.

➢ A sole daughter takes a half share. Where the deceased has left behind
more than one daughter, all daughters jointly take two-thirds.

➢ If the deceased had left behind son(s) and daughter(s), then, the daughters cease to be
sharers and become residuaries instead, with the residue being so distributed as to ensure
that each son gets double of what each daughter gets.

The General Principles of Inheritance under Muslim Law::

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Nature of the Heritable Property:

Heritable property is that property which is available to the legal heirs for
inheritance. After the death of a Muslim, his properties are utilised 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.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.

Joint or Ancestral Property:

The concept of a joint family or of coparcenaries property (as is recognised 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.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.
In judicial verdict, it was held that the joint system family or joint property is
unknown to Muslim law and therefore the right, title and interest in the land held by
the person stands extinguished and stands vested in other persons.........In Abdul
Raheem vs. Land Acquisition Officer, AIR 1989 AP 318.
No Birth-Right:
Inheritance opens only after the death of a Muslim. No person may be an heir of a
living person (Nemoest haeres viventis). 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

9
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.
Doctrine of Representation:
Doctrine of representation is a well known principle recognised by the Roman,
English and Hindu laws of inheritance. Under the principle of representation, as is
recognised by these systems of laws, the son of a predeceased son represents his father for
purposes of inheritance. The doctrine of representation 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.

During the life of P, his family members are his two sons (A and B), and three grandsons (C,
D and E). Unfortunately, В pre-deceases P, i.e. В dies before the death of P. Subsequently,
when P also dies, the sole surviving members of the family of P are A and three grandsons,
C, D and E.
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.
But, Muslim law does not recognise 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. Both, under Shia as well as under Sunni law, E
has no right to inherit the properties of P. The result is that E cannot take the plea that he
represents his pre-deceased father (В) and should be substituted in his place.
Under Muslim law, the nearer heir totally excludes a remoter heir from inheritance. That is
to say, if there are two heirs who claim inheritance from a common ancestor, the heir who is

10
nearer (in degree) to the deceased, would exclude the heir who is remoter. Thus, between A
and E, A will totally exclude E because A is nearer to P in degree whereas, E belongs to the
second degree of generation. 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.
Accordingly, they argue that there can be no claim through a deceased person in whom no
right could have been vested by any possibility. But, it may be submitted that non-
recognition of principles of representation under the Muslim law of inheritance, seems to be
unreasonable and harsh. It is cruel that a son, whose father is dead, is unable to inherit the
properties of his grandfather together with his uncle.

Per-Capita and Per-Strip Distribution:

Succession among the heirs of the same class but belonging to different branches may either
be per-capita or per-strips. In a per-capita distribution, the succession is according to the
‘number of heirs’ (i.e. heads). Among them the estate is equally divided; therefore, each heir
gets equal quantity of property from the heritable assets of the deceased.
On the other hand, in a per strip 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 stripital 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. That is to say 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, S 1, 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.

11
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 strip. That is to say, 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 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 S 1, 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. It is significant to note that for a limited purpose
of calculating the share of each heir, the Shia law accepts the principle of representation.
Moreover, under the Shia law this rule is applicable for determining the quantum of share
also of the descendants of a pre-deceased daughter, pre-deceased brother, pre-deceased
sister or that of a pre-deceased aunt.

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.
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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.

Primogeniture:
Primogeniture is a principle of inheritance under which the eldest son of the deceased
enjoys certain special privileges. Muslim law does not recognise the rule of primogeniture
and all sons are treated equally.
However, under the Shia law, the eldest son has an exclusive right to inherit his father’s
garments, sword, ring and the copy of Quran, provided that such eldest son is of sound mind
and the father has left certain other properties besides these articles.

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 step son of H, who is step-
father of this son.
The step-father and step-son (or daughter) cannot inherit each other’s properties. That step-
child is competent to inherit from its natural father or natural mother. Similarly, the natural
father and natural mother can inherit from their natural sons or daughters.
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.
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.

Women Rights of Inheritance in Islam:

“For men is a share of what the parents and close relatives leave, and for
women is a share of what the parents and close relatives leave, be it little or much —
an obligatory share.” (Quran 4:7)----Allah Almighty says in Holy Quran.
Women form a main part of the society and most of their rights were denied in the
pre-Islamic periods. Islam has honored women by issuing many laws to protect them and to
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give them a noble life. The distinct and fixed right of inheritance is one of these laws which
Islam set for women.
From the above verse, we can say that Allah mentioned clearly about the rights of
inheritance for both men and women. It also clarifies the rights of women in inheritance that
were not known before. Many people claim that Islam does injustice to women in case of
inheritance but it’s not true. Allah Almighty offered a full and detailed method of women’s
inheritance in the Quran and Sunnah, if someone wants to know about it they can read from
Quran and the Sunnah of Prophet Muhammad
One of the companions of Prophet Muhammad Sa’ad ibn Abi Waqqas was ill and
requested to devise the majority of his wealth as charity, or a half of it since he was wealthy
and only had one daughter. The Messenger of Allah forbade him and only allowed him to
give a third, and said: “A third and a third is a lot, and it is better that you leave your
heirs wealthy rather than leave them needy begging from the people. You will not
spend anything seeking Allah’s countenance but you receive a reward for that
expenditure, even the morsel of food you put into your wife’s mouth.” (Bukhari)
In Holy Quran Allah Almighty clearly defined the rights of inheritance for both men
and women in a way: “Allah (thus) direct you as regards your children’s (inheritance)
to the male, a portion equal to that of two females. If only daughters, two or more,
their share is two-thirds of the inheritance. If only one, her share is a half. For parents,
a sixth share of the inheritance to each, if the deceased left children. If no children and
the parents are the (only) heirs, the mother has a third. If the deceased has brothers
(or sisters) the mother has a sixth. After payment of legacy and debts. Ye know not
whether the parents or your children are nearest to you in benefit. These are settled
portions ordained by Allah, and Allah is All-Knowing, All-Wise.” (Quran, 4: 11)

Rights Of Widows In Islam:

The widow is a woman who is destined to lose her husband who supports and provides for
her. She is a woman who suffers really hard. This suffering is not only financial, but most of the
time it is emotional and psychological suffering. When the husband dies, the widow has many
financial rights. She has the right to inherit him and it is not permissible for anyone to take her
inheritance without her acceptance. If the husband doesn’t leave for her enough money to fulfill her
needs and the children’s need, the society has to support her and charity becomes a must for her as
Prophet Mohamed (peace be upon him) said,
The one who looks after a widow or a poor person is like a Mujahid
(warrior) who fights for Allah’s Cause, or like him who performs prayers all
the night and fasts all the day.” [Al Bukhari].

14
 According to The Sharee‘ah (Islamic Law), a widow is indeed entitled to a share of
the inheritance from the property which belonged to her deceased husband. The wife’s
share is one-fourth if her husband leaves no child, but if he leaves a child she gets an
eighth. Allah said in the Holy Quran,
And for the wives is one fourth if you leave no child. But if you leave a child,
then for them is an eighth of what you leave.[Quran.com/4/12].

Islam also grants the widow the right to having a house and a shelter for her and the
children. band doesn’t leave a house, a proper amount of money is taken from his property to
provide a house for the widow and the children as she is in a special need for a house more than any
other inheritor.
The Right of Remarrying:
Islam considers human nature, hence, it permits the marriage of the widow and sets a
specific period for her ‘Iddah’ (waiting period), which is four months and ten days or until
delivery for pregnant women. It is permissible to a wife to remarry in Islam after her Iddah
(waiting period) ends in order to maintain her chastity or to fill the emotional and the
psychological emptiness due to the absence of the husband especially if she is young and
has children who need a father. Allah Almighty said,
“And those who are taken in death among you and leave wives behind – they, [the
wives, shall] wait four months and ten [days]. And when they have fulfilled their term,
then there is no blame upon you for what they do with themselves in an acceptable
manner. And Allah is [fully] Acquainted with what you do.” [Quran.com/2/234].
In judicial verdict, it was held that a childless widow, in the absence of other heirs, was
entitled to inherit her share and rest of the property including the land, of her husband by the
application of the doctrine of return.---- In Abdul Hammed Khan vs. Peare Mirza, 1935
I.L.R. 10 Luck. 550.

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.

15
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?

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.
GROUNDS OF DISQUALIFICATIONS :
Disqualifications which debar the heirs to succeed the property of the intestate are—

MURDERER
Under the Sunni Law, a person who has caused the death of another, whether intentionally,
or by mistake, negligence, or accident, is debarred from succeeding to the estate of that
other. Homicide under the Shia Law is not a bar to succession unless the death was caused
intentionally.

ILLEGITIMATE CHILDREN
Under the Hanafi School, an illegitimate child is not entitled to inherit. Such a child cannot
inherit from his/her father but can inherit from his/her mother and all relatives of the mother.
The mother can also inherit the property of her illegitimate children.

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CHILD IN THE WOMB
A child in the womb of its mother is competent to inherit only if 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.

DIFFERENCE OF RELIGION
A non-Muslim could not inherit from a Muslim but the Caste Disabilities Removal Act of
1850 does away in India with the exclusion of a non-Muslim from the inheritance of the
property. If a non-Muslim accepts Islam, and then dies, the Act of 1850 cannot warrant the
application of his conversion law of succession to his property; the Muslim Law will apply
in such a case. Where a convert to Islam died leaving behind an only daughter, as against the
claim of his non-Muslim relatives she was given all his property – ½ share as her fixed
share as Quranic heir and the reminder by way of return.
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.

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.

Inheritance & Wills as Per Quran and Muslim Law:

Wills are not encouraged in most Islamic societies and are, in some jurisdictions,
indeed prohibited in spite of the existence of ahadeeth condemning intestacy. In any case
the testator is restricted to willing a maximum of one third of his estate and usually
only to other than his legal heirs. It is to be noted that the only difference between the gift
and the will is one of timing; the former realizes the father's legitimate intent while the latter
frustrates it.
The restrictions on the proportion of the will is based, by the jurists, on their incorrect
construction of a famous hadeeth wherein the Prophet, peace be upon him, in response to a
question from Sa'd Ibn Abi-Waqqaass - who was sick and believed that he was about to die -
if he should bequeath his entire estate to charity, to the exclusion of his only daughter,
refused; Sa'd then suggested one half of the estate and again the Prophet refused, upon

which he proposed that he will only one third. The Prophet reluctantly approved suggesting
that even that was too much. He also advised the dying man that it was better to leave his
child rich rather than poor. There are several versions of this hadeeth in Al-Bukhari.
 The Quran commands to use the instrument of the will to transfer once property after
his death. The first reference to inheritance in the Quran occurs at chapter 2, Al-Baqarah
verses 180 through 182 which enjoin "(180). It is decreed for that when death approaches
one of follower, if he leaves property, he shall write a will in favour of the parents and
relatives equitably. This is a duty upon the righteous (181). If anyone changes a will after
he has heard it, the sin of altering the will shall be fall those responsible for altering it. God
is Hearer, Knower (182). The very first mention of inheritance in the Quran commands to
transfer his property to his heirs by means of a will. Moreover, Lord makes it a duty upon
the righteous.
To demonstrate, let us examine a few common cases. A man has two children, a boy and a
girl; the girl had a bad marriage which broke up and left her with young children in restrained
financial circumstances, while the boy is doing well and earning a good living. Common sense and
equability would dictate that the man should give her whatever she needs to maintain herself and
her children at a decent standard of living equivalent to her brother's, or at least as would be
expected in her social circle, regardless of the proportion of the estate that that might represent.
In actual practice, if the father gifted the difference to the daughter before his own
death, there would be no repercussions; if, however, he willed her the difference by way of
bequest, such a will would be invalid on the grounds that a legal heir cannot be the
beneficiary of a will.
Similarly, if that man had two sons, one god fearing, obedient and kind and
considerate to his parents while the other is a rebellious, uncaring, insensitive profligate.
Would it be equitable to give the latter a share equal to that of his good brother? The
obvious answer is no. In fact giving him anything might simply speed his decline. His father
may deem it necessary, for the good of the wayward son's children, if he had any, to
disinherit him and will his share to them by way of a trust if they are minor, or directly if
they are grown up.
A third case that comes to mind is that of a man with several children who have
children of their own. One of the man's children predeceases him. In the Hanafi jurisdiction
the children of the deceased son receive no part of their grand- father's estate. However, the
jurists - realizing the gross injustice that that rule represents to the deceased son's children -
prescribe, of all things, a will to be made by the grandfather in favor of the grandchildren
bequeathing to them their father's share of the legacy. This is referred to as "wassiyah
wajibah" - literally, "a will that should be made". However, the value of the will cannot
exceed one third of the estate even though the dead son's share may be more than one third.
The difference above the third will be unjustly lost to the children who are the true
beneficiaries and given to someone who is not entitled to it. This is, at least, an injustice and
if the children are young and fall under the definition of 'orphans' it becomes a mortal sin
that violates chapter 4, An-Nissaa', verse 10 of which more later. God does not condone
injustice and He is aware of all we do.
In Non-testamentary succession, the Muslim Personal Law (Shariat) Application Act,
1937 gets applied. On the other hand, in case of a person who dies testate i.e. one who has
created his will before death, the inheritance is governed under the relevant Muslim Shariat
Law as applicable to the Shias and the Sunnis.In cases where the subject matter of property
is an immovable property, situated in the state of West Bengal, Chennai and Bombay, the
Muslims shall be bound by the Indian Succession Act, 1925. This exception is only for the
purposes of testamentary succession.

Case Laws
1. In Hakim Rehman vs. Mohammad Mahmood Hassan, AIR 1957 Pat 559, it was held that
upon the death of a Mohammedan, the whole estate devolves upon his heirs at the moment
of his death and the heirs succeed to the estate as tenants-in-common in specific shares.
2. In Rukmanibai vs. Bismillavai, AIR 1993 MP 45, it was held that where a person, who has
converted to Islam, dies leaving behind his daughter only and no residuary, shall be entitled
to her share as well as residuary share in the property of the deceased.
3. In Shukurllah vs. Zohra Bibi, AIR 1932 All. 512 it was held that each heir of the
Mohammedan is liable for the debt of the deceased to the extent only of a share of the
debts proportionate to his share of the estate.
4. In Abdul Raheem vs. Land Acquisition Officer, AIR 1989 AP 318, it was held that
the joint system family or joint property is unknown to Muslim law and therefore the
right, title and interest in the land held by the person stands extinguished and stands
vested in other persons.
5. In Abdul Hammed Khan vs. Peare Mirza, 1935 I.L.R. 10 Luck. 550 it was held that
a childless widow, in the absence of other heirs, was entitled to inherit her share and
rest of the property including the land, of her husband by the application of the
doctrine of return.

6. In Akbar Ali Vs. Adar Bibi AIR 1931 Cal 155, it was held that in India the
Mohamaddi scheme of distribution of shares among the uterine heirs – despite its
deeper sex based discrimination and the resulting complications – has prevailed and
remains in force by tradition, though there is no binding law to this effect.
7. In Ali Saheb Vs Hazara AIR 1968 Mys 351 it was held that though the principle of
rad (return) under the classical law never applies to the surviving spouse, if that
spouse is only survivor in India he/she gets the whole property.
8. In Mazirannessa Vs Kibria AIR 1970 Cal 387 it was held that where a surviving
spouse is related to the deceased also in another capacity by blood relation, shares in
the both capacities may be lawfully allotted to her or him.
9. In Damodar Vs Shahjadi AIR 1989 Bom 1 it was held that where a person whose
sole heir was his widow, had bequeathed all his properties to a stranger, the court
allowed the will after allotting to the widow her ¼ share by inheritance.
10. In Abdul Matin Vs Abdul Azeez AIR 1990 Gau 70 it was held that where one
of the two sisters who had inherited their father’s property died leaving behind a son
only and the other died later survived only by her husband, ½ latter’s property was
allotted to her husband and the other ½ her sister’s son as a uterine hei
Table of shares – Sunni Law

Normal Share This column sets out

(A) Shares of Sharers Nos:3, 4, 5, 8
Condition under and 12 as varied by special
Of Two or
Sharers Of which the normal circumstances;
more
one share is inherited (A) Conditions under which sharers
collectively
Nos:1, 2, 7, 8, 11 and 12 succeed
as Residuaries
1. FATHER 1/6 When there is a child [When there is no child or child of a son
or child of a son the father inherits as a residuary]
2.TRUE 1/6 When there is a child [When there is no child or child of a son.
GRANDFATHER or child of a son and the Tr.G.F. inherits as a residuary
no father or nearer provided there is no father or nearer
true grandfather. Tr.G.F.]
3. HUSBAND ¼ When there is a child ½ when no child or child of a son.
or child of a son
4. WIFE 1/8 1/8 When there is a child ¼ when no child or child of a son.
or child of a son.
5. MOTHER 1/6 (a) When there is a 1/3 when no child or child of a son. and
child or child of a not more than one brother or sister (if
son. or any); but if there is also a wife or
(a) When there are two husband and the father, then only 1/3 of
or more brothers or what remains after deducting the wife’s
sister, or even one or husband’s share.
brother and one
sister, whether full
consanguine or
uterine
6. TRUE 1/6 1/6 (a) Maternal – when
GRANDMOTHER no mother, and no
nearer true
grandmother
either paternal or
maternal.
(a) Paternal – when no
mother, no father
no nearer true
grandmother
either paternal or
maternal, and
immediate true
 grandmother.
7. DAUGHTER ½ ½ When no son [With the son she becomes a residuary]
8. SON’S ½ 2/3 When no (1) son, (2) When ‘there is only one daughter or
DAUGHTER daughter, (3) higher higher son’s daughter but no(1) son, (2)
h.l.s. [Sec.62 cl. son’s son (4) higher higher son’s son, (3) equal son’s son, the
(a)] son’s daughter or (5) daughter or higher son’s daughter will
equal son’s son take ½ and the son’s daughter h.l.s.
(whether one or more) will take 1/6 i.e.
2/3 – ½ ] [with an equal son’s son she
becomes a residuary]

When there is only one daughter the

son’s son daughter (whether one or
more) will take 1/6, if there be no son or
son’s son. (With the son’s son she
becomes a residuary)

e.g. ½ 2/3 When no(1) son, (2) When there is only one daughter or the
(i)Son’s daughter; or (3) son’s son’s daughter, the son’s son’s daughter
Daughter son (whether one or more) will take 1/6, if
there be no (1) son, (2) son’s son, or
son’s son’s son (With the son’s son’s son
she becomes a residuary]

When no(1) son, (2)

(ii) Son’s son’s ½ 2/3 daughter; or (3) son’s
daughter son, (4) son’s
daughter, or (5) son’s
son’s
9. UTRINE 1/6 1/3 When no(1) child, (2)
BROTHER or child of a son h.l.s (3)
10. SISTER father of (4) True
grandfather
11. FULL ½ 2/3 When no(1) child, (2) [With the full brother she becomes a
SISTER child of a son h.l.s (3) residuary]
father of (4) True
grandfather, or (5) full
brother
12. ½ 2/3 When no(1) child, (2) But if there is only one full sister and she
CONSANGUINE child of a son h.l.s (3) succeeds as a sharer, the consanguine
SISTER father of (4) True sister (whether one or more) will take
grandfather, or (5) full 1/6, provided she is not otherwise
brother, (6) full sister, excluded from inheritance. [With the
or (7) consanguine consanguine brother she becomes a
brother residuary]
Table of sharers – Shia Law
Normal Share
Of two or Conditions under Share as varied by
more which the share is special
Sharers Of one
collectivel inherited circumstances
y
Whether there is a ½ when no such
1. Husband ¼
lineal descendant descendant
Whether there is a ¼ when no such
2. Wife 1/8 1/8
lineal descendant descendant
[If there is no lineal
Whether there is a
3. Father 1/6 descendant the father
lineal descendant
inherits as a residuary]
(a) When there is a
lineal
descendant: or
(a) When there are
two or more full
or consanguine
4. Mother 1/6
brothers, or one
such brother and
two such sisters
or four such
sister, with the
father.
[With the son she takes
5. Daughters ½ 2/3 When no son
as residuary]
6. Uterine Brother or When no parent or [With the son she takes
1/6 1/3
7. Sister lineal descendant as residuary]
When no parent or [The full sister takes as
lineal descendant or a residuary with the full
8. Full sister ½ 2/3
full brother or father’s brother and also with
father the father’s father.
[The consanguine
When no parent or
sister takes as a
lineal descendant or
residuary with the
9. Consanguine Sister ½ 2/3 full brother or sister or
consanguine brother
consanguine brother or
and also with the
father’s father.
father’s father.

REFERENCES
1. Aqil Ahmad – Mohammedan Law (Revised by Prof. Iqbal Ali Khan)
2. Mulla’s Principles of Mohamedan Law
3. shareyouressays.com
4. ipleaders.in
5. lawrato.com
Complitaion by:

LAKSHMI NARAYANA.B ,
IInd Addl.Senior Civil Judge,
Kakinada.