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Prior to Islam, and within the Arabian Peninsula, the system of inheritance
was confined to male descendants. Women not only did not have any
share of inheritance, but they themselves were inheritable too. Siblings
from the mother's side, like half-brothers or half-sisters, were completely
excluded. Other Semitic cultures also practiced primogeniture, under which
all property went to the eldest male child.
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considerably. 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, like the
husband and half-brothers from the mother’s side, which were excluded
from inheritance in old customs. In general, the Qur'an improved the status
of women by identifying their share of inheritance in clear terms. It also
completely forbade the practice of inheriting widows. Joseph
Schacht states that "this is not meant as a regular legal ordinance, but is
part of the Qur'anic endeavor to improve the position of women.” The
Qur'an does not explicitly mention the shares of male relatives, such as
the decedent'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.
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RECENT DEVELOPMENTS
The Qur'an contains only three verses which give specific details of
inheritance and shares, in addition to few verses dealing with testamentary
power. It has also been reported in Hadith that Muhammad allotted great
importance to the laws of inheritance and ordered his followers to learn and
teach them. Muslim jurists used these verses as a starting point to expound
the laws of inheritance even further using Hadith, as well as methods of
juristic reasoning, like Qiyas. In later periods, large volumes of work have
been written on the subject.
This amalgamation of old agnatic customs and Islamic Law led to a number
of problems and controversies that Muslim jurists have solved with great
ingenuity. Through the use of deductive reasoning, Muslim jurists added
three additional heirs: the paternal grandfather, maternal grandmother, and
agnatic granddaughter. These heirs, if entitled to inherit, are given their
fixed shares and the remaining estate is inherited by the Residuaries. 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.
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All the modern writers have admired the Muslim system of inheritance for
its utility and formal excellence. Muslim law of inheritance is based on the
rules laid down in Qur’an or through the customs and usage prevalent
among the Arabs. In the pre-Islamic world the law of inheritance had so
many evils in it. Women had been completely denied the share of
inheritance. They were rather regarded as part of the property of the
deceased and, therefore, their right to property by inheritance was out of
question. In pre-Islamic Arabia and other countries where there had been
tribal societies not only women were deprived of the right of inheritance but
even weak and sick persons and minor children were given no share in it,
as the common principle of inheritance was that he alone is entitled to
inherit who wields the sword. Then in certain societies there had existed
the law of primogeniture and it exists even today in some of the so-called
civilized parts of the world which entitles only the eldest son to inherit the
whole of the father's property or to get the lion's share.
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GENERAL RULES TO INHERITANCE
WITH EXCLUSIONS
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be passed on to his / her heirs. It would be still the property of the
ancestor / propositus, who is alive.
5. Missing heirs will be given their respective shares if they reappear at
the time of such distribution, or else, they would be considered dead.
6. A child in a womb is deemed to be born on the date of conception
and if born alive, such child will get share or otherwise such share
will be distributed among others.
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TYPES OF HEIRS
AND
THEIR RESPECTIVE SHARES
1. Dhaw-u'l-Fara'id:-
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If the father of the deceased is alive, then the share of the mother is
of what is left from the share of the wife of the deceased. The
presence of grandfather does not reduce the share of the mother of
the deceased. The grandmother of the deceased has no share in the
presence of the father of the deceased but she has a share in the
presence of the grandfather.
The third set of sharers is uterine brothers and sisters. They are
entitled to one-sixth if their number is one, and one-third if they are
more than one.
Real daughter: one-half when alone, and two-thirds if more than one.
If the deceased is survived by a male child also, the daughters are
then treated as Asaba and the male child would get double of what
falls to the lot of daughters. The granddaughters stand on the same
level as daughters. But in case the deceased is survived by one real
daughter and one or more than one granddaughter they would get
one-sixth. The granddaughter is not entitled to any share if the
deceased is survived by a son, but if he is survived by grandsons and
granddaughters, they would be treated as 'Asaba and the male
grandchild would get double of what goes to the female grandchild.
Full sister gets one-half if she is alone and two-thirds if they are more
than one. Consanguine sister is entitled to one-half if one, and two
thirds if more.
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2. Asabat:-
Son is the first asabat to get the residue in order of succession. The
daughters are entitled to half of the share as given to the son. The
grandsons are not entitled to any share in the presence of the son. If
the son is not living, then the grandson is entitled to gain share in the
inheritance. If there is more than one son, the inheritance will be
distributed equally amongst them.
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3. Dhaw-u’l-Arham:-
SHARES OF HEIRS
Share
Heir Conditions Exclusion
One Two or more
When there is
1/4 NA a child or NA
son’s child
Husband
When there is
1/2 NA no child or NA
son’s child
When there is
1/8 1/8 a child or NA
son’s child
Wife
When no
1/4 NA child or son’s NA
child
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When there is
1/6 NA son or son’s NA
son
When there
are one or
more
daughters, Father is a
Father 1/6 plus residue son’s sharer and
daughters residuary
and there is
no son nor
son’s son
When there is
Absence of
Residue no child or
any child
son’s child
When there is
a child or Excluded by
son’s child father or
1/6 NA
and no father nearer true
or nearer true grandfather
grandfather
When there
True
are
Grandfather
1/6 plus residue Daughters or NA
only son’s
daughters
When there is
a Wife or Converted by
Residue
husband and father
father
When there is
a child or
Mother 1/6 NA son’s child or NA
two or more
brothers or
sisters or
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brother or
sister and
father
When there is
no child, nor
son’s child
1/3 NA and not more NA
than one
brother and
sister
When there is
a wife or Converted by
1/3 plus residue
husband and father
father
When no
Maternal
mother or no Mother,
Grand Mother
1/6 NA nearer Paternal True
(How high so
Paternal Grandmother
ever)
grandmother
When no
mother or no Mother,
nearer Maternal or
Paternal
Maternal or Paternal
Grand Mother
1/6 NA Paternal grandmother
(How High So
grandmother or father or
ever)
or father, or true
nearer true grandfather
grandfather
When there is
½ 2/3 NA
no son
Daughter Converted by
Residue son or two or
more sons
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Daughter son’s son or son of higher
one or more grade, or two
daughters or or more
higher son’s daughters or
daughter two or more
son’s
daughters of
higher grade,
or one
daughter with
two or more
son’s
daughters or
higher grade
Excluded by
son or son’s
son of higher
grade, or two
or more
When there is
daughters or
no son or
two or more
son’s son or
son’s
1/6 NA one or more
daughters of
daughters or
higher grade,
higher son’s
or one
daughter
daughter with
two or more
son’s
daughters or
higher grade
Converted by
son’s son of
Residue
equal or even
lower grade
When no Excluded by
child or son’s Son or son’s
Full Sister 1/2 2/3
child or father so, father or
or brother true
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grandfather,
daughter or
son’s
daughter
Converted
due to full
brother or
Residue daughters or
son’s
daughters, full
sisters
When no
Excluded by
child or Son’s
Son, Father,
child ( How
or True
½ 2/3 Low So ever),
Grandfather,
or father or
or full brother
brother or full
or full sister
sister
Excluded by
one or more
Consanguine daughters or
Sister When one full son’s
1/6 NA
sister only daughters or
by two or
more full
sisters
Converted in
to Residuary
Residue by
consanguine
brother
Excluded by
Son or Son’s
Uterine Son, father or
½ 1/3
Brother true
grandfather or
daughter or
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son’s
daughter
Excluded by
Son or Son’s
when no child Son, father or
or (How Low true
Uterine Sister 1/6 NA
So ever) grandfather or
son’s child daughter or
son’s
daughter
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DOCTRINE OF AUL
DOCTRINE OF RADD
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WOMEN AND INHERITANCE
Sometimes woman gets double share then share of man, for example if
there are only parents and husband, husband will receive half, father gets
1/6 and mother gets 2/6. Also the Qur'an does not discriminate between
men and women in cases of kalalah relation. Kalalah describes a person
who leaves behind neither parents nor children; it also means all the
relatives of a deceased except his parents and children, and it also denotes
the relationships which are not through [the deceased’s] parents or
children. Islamic scholars hold that the original reason for these differences
is the responsibilities allotted to spouses. A husband in Islam must use his
inheritance to support his family while a wife has no support obligations.
Additionally, Arab society traditionally practiced the custom of bride
price or dower rather than dowry; i.e., the man paid a gift to his wife or her
family upon marriage, rather than the opposite, placing a financial burden
on men where none existed on women. This custom received Islamic
sanction.
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DISTINCTION BETWEEN
SUNNI AND SHIA LAW OF INHERITANCE
Sr.
SUNNI LAW SHIA LAW
No.
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Doctrine of Radd does not apply
to wife and husband in presence Except India, Doctrine of Radd
10. of any other heirs. However, in is not applicable to wife under
absence of sharers, both get by any circumstances.
return.
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CONCLUSION
The law of succession in India falls within the realm of personal law. Due to
this, we have so many different succession laws, each purporting to reflect
the diverse and differing aspirations, customs, and mores of the community
to which the statute in question applies. The primary source of the Muslim
law of succession flows from the Holy Koran. In addition, the Ijmas, the
Sunnas, and the Qiyas, from all of which rules pertaining to succession can
be gleaned.
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priority over the father who in turn takes priority over the brothers who in
turn take priority over the paternal uncles.
As we shall see the Quran does not expressly state the share of the male
agnate relatives as such, although it does enact that the share of the male
is twice that of a female. The Sunni jurists take the view that the intention of
the Quranic injunctions was not to completely replace the old customary
agnatic system entirely but merely to modify it with the objective of
improving the position of female relatives. The Sunni Islamic law of
inheritance is therefore, an amalgamation of the Quranic law superimposed
upon the old customary law to form a complete and cohesive system.
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BIBLIOGRAPHY
Though primary source would be Qur’an, following books are referred for
better understanding
1. FAMILY LAW
By G.C.V. Subba Rao.
3. MOHAMMEDAN LAW
By Tahir Mahmood.
WEBLIOGRAPHY
1. http://www.iium.edu.my/deed/hadith/muslim/011_smt.html
Visited on 26th December, 2013.
2. http://www.lawyersclubindia.com/articles/-8220-SUCCESSION-
UNDER-HANAFI-LAW-8221--424.asp#.UryTq9IW2Xo
Visited on 26th December, 2013.
3. http://www.muslimpersonallaw.co.za/Inheritance%20according%20to%
20Islamic%20Sharia%20Law.pdf
Visited on 26th December, 2013.
4. http://www.kantakji.com/fiqh/files/mawareeth/4015.pdf
Visited on 23rd December, 2013.
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