MUSLIM PERSONAL
LAW
-- AN EXPOSITION
BY ATHAR HUSAIN
Published by the All India
Personal Law Bpard,
Camp Office, Nawatu Ulama,
Lucknow, India
Inheritance
Inheritance is an important branch of the family law of
the Muslims. The death of a person brings about a transfer of most of his
rights to persons who are called his heirs and representatives. The transferable
rights include all rights to property, usufruct, many dependant rights,
such as debts and [unrecognisable word] in action, rights to compensation,
etc., and the transmissible obligations are those capable of being satisfied
out of the estate of the deceased. What is left after the payment of funeral
expenses and the discharge of his debts and obligations is to be distributed
according to the law of inheritance.
The rules regulating inheritance are based on the principle
that the deceased's property should devolve on those who by reason of consanguinity
or affinity have the strongest claim to be benefitted by it and in proportion
to the strength of such claim. There is no distinction in the Muhammadan
law between movable and immovable property or between ancestral or self-acquired
property. There is no such thing as a Joint Muslim family nor does the
law recognise a[nything] in common [with] a Muslim family.birthright is
not recognised and the right of an heir apparent or presumptive comes into
existence for the first time [up]on the death of the ancestor to which
he would succeed.
According to the Sunni law, the expectant right of an
heir-apparent cannot pass by succession to his heir, nor can it pass by
bequest to a legatee under his Will, nor can it be the subject of transfer
of release.
Obstacles to succession
There are certain impediments to succession: (1) Slavery,
because a slave has no right to property. (2) Homicide, a person killing
another does not inherit from the latter, (3) Difference of religion, (4)
Difference of territorial jurisdiction either natural or constructive.
The Hanafi Law of Succession
The Sunni law recognises three classes of heirs:
(1) Ashabul faraiz --The sharers whose shares or
proportions have been fixed in the Quran. They take their specific portions
and the residue is then divided among the Agnates.
(2) The Asabah or Agnates, also called by
English writers as Residuaries.
(3) Dhauil-arham or Cognates or Uterine Relations.
They are also called Distant kindred i.e. relations who do not fall in
the category of sharers or Agnates.
The Sharers
The sharers or Ashabul-faraiz are
altogether twelve in number - four males and eight females.
The four males are: (1) the father, (2) the grandfather
or lineal male ascendant (when not excluded), (3) the uterine brothers,
and (4) the husband.
The females are: [the] (1) wife, (2) daughter, (3) son's
daughter or the daughter of a lineal male descendant howsoever low, (4)
mother, (5) true grandmother, (6) full sister, (7) consanguine sister i.e.
half sister on the father's side, and (8) uterine sister i.e. half-sisters
on the mother's side.
The Hanafis divide the ascendants for purposes of succession
into two classes viz., true and false. [The] true grandfather is an ascendant
in whose line of relationship to the deceased no female intervenes. For
example, a father's father is a true grandfather, whereas a mother's father
is a false grandfather. A true grandmother is a female ancestor in whose
line of relationship with the deceased no false grandfather intervenes.
Thus a mother’s mother or a father’s father’s mother are true grandmothers,
whereas mother’s father’s mother is a false grandmother.
The shares of the sharers
1. Father: gets 1/6th when the deceased leaves a son or
son's son or any other male line descendant.
2. Father's father. or any other lineal male ascendant
gets the share of the father i.e. 1/6th.
3. Uterine brother: When only one, and no child or the
child of a son, father or true grandfather...... 1/6th.
When two or more and no child or the child of a son or
father or true grandfather ...... 1/3rd.
4. Husband:
(1) When the deceased leaves a child or the child of
a son howsoever low...... 1/4th.
(2) Without them ...... 1/2 half.
5. Widow :
(1) When the deceased has left no child or the child
of a son -1/4th
When there is no child or the child of a son-1/8th
6. Daughter :
(1) When only one and no son so as to render a
residuary - 1/2.
(2) When two or more-2/3rd
7. Sons:
(1) When only one and no child or sons daughter : son
or other male lineal descendant - 1/2.
(2) When two or more and no child or son's son or other
male lineal descendant-2/3.
(3) When co-existing with one daughter and no son or
son's son or other male lineal descendant-1/6. When there are two daughters,
the son's daughters are excluded unless there happens to be with them a
lineal male descendant of the same or lower degree. The son's daughters
or the daughters of any lineal
male descendant are excluded by a son or by a lineal
male descendant nearer in degree than themselves.
8. Mother:
(1) When co-existing with a child of the propositus [the
person immediately concerned] or a child of his
or her son, or two or more brothers and sisters whether consanguine or
uterine-1/6.
(2) When not-1/3.
9. The grandmother - However high when not excluded by
a nearer true female ancestor-1/6.
10. Full sisters -
(I) When only one and no son or son's son, true grandfather,
daughter, son's daughter or brother-1/2.
(2) When two or more and no such excluders-2/3.
11. Consanguine sisters --
(1) When only one and no excluder as above - 1/2.
(2) When one, and co-existing with one full sister-1/6.
(3) When two or more and no such excluder-1/3.
12. Uterine sisters - Get the same share as uterine brothers
- 1/6.
All these shares are specified in the Quran. If it be
found on assigning respective shares of the sharers that total of the shares
exceeds unity, the share of each sharer is proportionally diminished by
reducing the fractional shares to a common denominator and increasing the
denominator so as to make it equal to the sum of numerators.
Asabah or Residuaries
This class of heirs is called asaba or residuaries because
they take the residue after such of the sharers as are not excluded have
been satisfied. They are divided into three classes:
(1) Residuaries in their own right;
(2) Residuaries in another’s right, and
(3) Residuaries together with another.
Residuaries in their own right
To this class belong all [the] male relations in the chain
of wholerelationship, no female enters. They are divided into four subclasses:
(1) Parts of the deceased, i.e. his sons and grandsons
howsoever low.
(2) His roots i.e. the ascendants, his father and true
grandfather, how high soever.
(3) The offspring of his father viz. full brothers and
consanguine brothers and their lineal male descendants.
(4) Parts or offspring of the true grandfather, how high
soever, i.e., lineal male descendants, however remote, of lineal male ascendants,
however remote.
Receiving another's rights
Residuaries in another's right are those females who as
sharers are entitled to one-half or two-thirds and who become residuaries
if they co-exist with their brothers. For example, if the heirs of a deceased
person are his widow, brother and sister, the widow will get one-fourth,
and of the remaining three-fourths the brother will get two portions and
the sister one portion as residuaries. Residuary together with another
is a female heir who becomes residuary because of her co-existing with
another female heir, for instance, where there is a sister with a daughter.
If there be no residuary, the residue returns to the sharers
by consanguinity in proportion to their shares.
Distant kindred
The next class of heirs are known as Dhauil-arham
or distant kindred. They include the relations who are neither sharers
not residuaries; they inherit only if there are no sharers or residuaries.
Shafi'is and Malikis do not treat them as heirs at all. The distant kindred
are divided into four subclasses:
(1) The offspring of the deceased viz
(a) the children of daughters and their descendants
(b) The children of son's daughters and their descendants
howsoever low.
(2) The root of the deceased or his ascendants
(a) Male ascendants however remote, in whose
line of relations to the deceased there occurs female and who are therefore
called false grandfathers. e. g. [a] deceased's mother's father [or a]
father's mother's father.
(b) Female ancestors technically called false grandmothers.
(3) The offspring of his parents viz. the daughters
of full brothers and of full brother's sons, sister's children.
(4) The offspring of grandparents and other ascendants
however remote.
(a) daughter of half paternal uncles by the father.
(b) paternal aunts, full consanguine or uterine and their
children.
(c) daughters of full paternal uncles and their sons.
(d) maternal uncles and aunts and their children.
(e) paternal uncles by the mother.
The general order of succession is according to their
classification, the first class occupying [the] first and so on.
Among the individuals of the various classes, succession
is regulated by proximity to the deceased, the nearer in degree always
excluding the more remote.
Exclusion
In order to regulate the number of relations who might
inherit together, the doctrine of hujub or exclusion is applied.
The son, father, husband, daughter, mother and the wife are never totally
excluded. Exclusion is based on two principles.
(1) A person who is related to the deceased through
another is excluded by the latter, for example, the father excludes the
grandfather, brother and sister in the sun exclude the grandson and this
principle is extended to the residuaries so as to give preference to the
proximity of degree, for instance, a son excludes another son's son. Secondly,
the closest in blood excludes the others. A relation of full blood always
inherits in preference to a relation by the father only. Thus a brother
excludes a consanguine brother or sister. There is an exception to the
first rule, namely that the mother does not exclude brothers and sisters
and the second rule is subject to the exception that uterine relations
are not excluded on that ground.
(2) Exclusion may sometimes be partial. There is also
a general rule that when the deceased leaves behind a male and a female
heir of the same class and degree, the latter will get half of the former.
Inheritance of the Grandson
A very wrong impression has somehow gained ground that
Islam denies [an] inheritance to a grandson. Islam does not deny [an] inheritance
to him. [However,] in certain circumstances he is excluded by a nearer
heir, like [a] father of the grandson. There are 26 types of situations
in which inheritance in varying degrees can reach a grandson and a grandfather.
They are given below.
Note: In the columns where it has been recorded
that the grandfather will get 1/6th and [the] rest in the presence of daughters
and granddaughters, it means that after giving the allotted shares to daughters
and the granddaughters, the grandfather will get the rest of the share
plus 1/6th of the total inheritance.
2. Where it is written that there is [a] difference of
opinion about the share of the grandfather in the presence of real and
step-brothers and sisters, it means that the difference of opinion is about
the extent of the share and not about the inheritance itself.
3. Where total joint is written in the column of the grandson
it means that all [of] the grandsons will get equal shares. This chart
will show that a grandfather inherits a grandson in twenty-five eventualities
and is excluded only in one situation, i.e., in the presence of the father
of the grandson. Likewise a grandson inherits from the grandfather in twenty-five
situations and is excluded only in one situation, i.e., in the presence
of his father.
It is in one and only one situation that a grandson is
excluded from inheritance i.e., in the presence of his father but much
has been made by the opponents of the Sharia law and votaries of
a common civil code.
They voice the following arguments:
(1) A grandson, who is excluded only in the presence
of his father, is likened to an orphan and Islam has said so much in support
of orphans. The grandson in question is certainly not an orphan and there
is [a] big difference between [the] care of orphans in general and [the]
right of inheritance [of] a property.
(2) It is said that a grandson has been deprived in the
presence of other sons of the grandfather, i. e., uncles of the grandson,
and if both the grandfather and the grandson have their own children, they
are alike in situation but Islam gives [a] share to a grandfather from
the property of the deceased grandson but not vice versa. This also is
a fallacious argument [that] is based on wrong assumptions. In Ayat-e-Mirath,
the Quran has used the plural word Aulad and Abwain.
Aulad applies to sons as well as to grandsons. Likewise,
Abwain
applies to [the] father but it equally applies to [the] grandfather. In
[the] case [where] the father of a grandson has died, the grandson represents
him in the matter of inheritence.
Those interested in detailed arguments may see the brochure
of Qazi Abdul Rarzaq Mazahari published by the All India Personal Law Board,
Bombay.
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