Inheritance - muslim
M. R. Khan
(Querist) 16 November 2011
This query is : Resolved
D/Sirs
A Sunni man dies, leaving behind Widow, Daughter and Mother. if Widow gets 1/8 (12.50%), Daughter gets 1/2 (50%), Mother gets 1/6 (16.67%), total becomes 79.17%, if the above portions are correct, then pls advise to whom and how the residuary 20.83% would be distributed?
Thanks and Regards,
Sankaranarayanan
(Expert) 16 November 2011
Muslim women’s property rights:
Indian Muslims broadly belong to two schools of thought in Islamic Law: the Sunnite and the Shiite.
Under the Sunnite School which is the preponderant school in India, there are four sub categories;
Hanafis, Shafis, Malikis and Hanbalis. The vast majority of Muslims in India, Pakistan, Afghanistan, and
Turkey are Hanafis. The Shiites are divided into a large number of sub schools, the two most important
of which, so far as India is concerned are the Ismailis and the Ithna Asharis, but they form a smaller
section of the Indian Muslim population. The usual practice in this sub-continent is to use the terms
‘Sunni’ law or ‘Shia’ law. Strictly speaking, this is inexact; by the former is meant the Hanafi Law and by
the latter, the Ithna Ashari school.
Broad principles of inheritance in Muslim law: Till 1937 Muslims in India were governed by customary
law which were highly unjust. After the Shariat Act of 1937 Muslims in India came to be governed in
their personal matters, including property rights, by Muslim personal law as it “restored” personal law in
preference to custom. However this did not mean either “reform” or “codification” of Muslim law and till
date both these have been resisted by the patriarchal forced in the garb of religion.
Broadly the Islamic scheme of inheritance discloses three features, which are markedly different from
the Hindu law of inheritance: (i) the Koran gives specific shares to certain individuals (ii) the residue
goes to the agnatic heirs and failing them to uterine heirs and (iii) bequests are limited to one-third of
the estate, i.e., maximum one-third share in the property can be willed away by the owner.
The main principles of Islamic inheritance law which mark an advance vis-à-vis the pre-Islamic law of
inheritance, which have significant bearing on the property rights of women, are: (i) the husband or wife
was made an heir (ii) females and cognates were made competent to inherit (iii) parents and
ascendants were given the right to inherit even when there were male descendants and (iv) as a
general rule, a female was given one half the share of a male.
The newly created heirs were mostly females; but where a female is equal to the customary heir in
proximity to the deceased, the Islamic law gives her half the share of a male. For example, if a
daughter co-exists with the son, or a sister with a brother, the female gets one share and the male two
shares.
The doctrine of survivorship followed in Hindu law is not known to Mohammedan law; the share of each
Muslim heir is definite and known before actual partition. Rights of inheritance arise only on the death
of a certain person. Hence the question of the devolution of inheritance rests entirely upon the exact
point of time when the person through whom the heir claims dies, the order of deaths being the sole
guide. The relinquishment of a contingent right of inheritance by a Muslim heir is generally void in
Mohammedan law, but if it is supported by good consideration and forms part of a valid family
settlement, it is perfectly valid. The rule of representation is not recognized, for example, if A dies
leaving a son B and a predeceased son’s son C, the rule is that the nearer excludes the more remote
and, there being no representation, C is entirely excluded by B. There is however no difference
between movable property and immovable property.
Some of the features of the Hanafi school are being pointed out here to get a glimpse into the broad
structure of the property rights of Muslim women in India.
The Hanafi jurists divide heirs into seven categories; three principal and four subsidiaries. The 3
principal heirs are Koranic heirs, Agnatic heirs (through male lineage) and Uterine heirs. The 4
subsidiaries are the successor by contract, the acknowledged relative, the sole legatee and the state
by escheat.
The following 12 heirs constitute Class I heirs (Koranic Heirs):
(a) Heirs by Affinity - Husband and Wife
(b) Blood Relations - Father, True Grandfather (howsoever high), Mother, True
Grandmother (howsoever high), Daughter, Son’s Daughter (howsoever low), Full sister,
consanguine sister, uterine brother, and uterine sister.
Rules of Exclusion: The husband and wife are primary heirs and cannot be excluded by anyone, but
they also don’t exclude anyone either. Law fixes the share of the spouses; if they exist they reduce the
residue which may be taken by the Agnatic or Uterine heirs, but they do not exclude either wholly or
partly any heir.
The father does not affect the share of any Koranic heir except the sisters (full, consanguine or uterine)
all of whom he excludes.
The mother excludes the grandmother, and the nearer grandmother excludes the more remote. The
mother’s share is affected by the presence of children or two or more brothers or sisters. Her share is
also greatly affected by the existence of the husband or wife and the father. In the case of a daughter
she is the primary heir. She partially excludes lower son’s daughters, but one daughter or son’s
daughter does not entirely exclude a lower son’s daughter. As far as the sisters are concerned, one full
sister does not exclude the consanguine sister, two full sisters however exclude the consanguine sister.
The uterine brother or sister is not excluded by the full or consanguine brother or sister.
Another rule that requires consideration is that, ‘a person though excluded himself, may exclude
others.’ For example, in a case where the survivors are the mother, father, and two sisters: the two
sisters are excluded by the father; and yet they reduce the mother’s share to 1/6th.
Class II heir (Agnatic heir): Their classification is done as follows; Males (Group I)- the agnate in his
own right, Group II (females)-the agnate in the right of another, Group III – the agnate with another.
The first group comprises all male agnates; it includes the son, the son’s son, the father, the brother,
the paternal uncle and his son and so forth. These in pre-Islamic law were the most important heirs; to
a large extent they retain, in Hanafi law, their primacy, influence and power.
The second group contains four specified female agnates, when they co-exist with male relatives of the
same degree, namely, daughter (with son), and son’s daughter howsoever low with equal son’s son
howsoever low, full sister with full brother and consanguine sister with consanguine brother.
The third group comprises the case of the full sister and consanguine sister. For example if there are
two daughters and two sisters, here the daughter is preferred as a descendant to the sister who is a
collateral; thus the daughter would be placed in Class I and she would be allotted the Koranic share
and the residue would be given to the sister as a member of Class II.
Under this system the rule that is followed is first the descendants, then the ascendants and finally the
collaterals. The agnatic heirs come into picture when there are no Koranic heirs or some residue is left
after having dealt with the Koranic heirs.
Class III (Uterine heir):
This class is constituted mainly by the female agnates and cognates. Classification is group Idescendants,
which are daughter’s children and their descendants and children of son’s daughters
howsoever low and their descendants, Group II-ascendants, which are false grandfathers howsoever
high and false grandmothers howsoever high, Group III- collaterals, which are descendants of parents
and descendents of grandparents true as well as false.
Members of this class succeed only in the absence of members of Class I and Class II. They also
succeed if the only surviving heir of Class I is the husband or the widow of the deceased.
Property rights through marriage: The Supreme Court of India has laid down in Kapore Chand v Kadar
Unnissa5, that the mahr (dower) ranks as a debt and the widow is entitled, along with the other
creditors of her deceased husband, to have it satisfied out of his estate. Her right, however, is the right
of an unsecured creditor; she is not entitled to a charge on the husband’s property unless there be an
agreement. The Supreme Court has laid down that the widow has no priority over other creditors, but
that mahr as debt has priority over the other heir’s claims. This right is known as the widow’s right of
retention.
Will: There is a provision against destitution of the family members in the Islamic law in that it is clearly
provided that a Muslim cannot bequeath more than one third of his property. However if he registers his
existing marriage under the provisions of the Special Marriage Act, 1954 he has all the powers of a
testator under the Indian Succession Act, 1925.
Rajeev Kumar
(Expert) 16 November 2011
Mr.shankar has well explained your query reply
prabhakar singh
(Expert) 16 November 2011
You question is that how a succession shall take place if any Sunni dyes leaving behind him:
1]mother
2]widow
3]a daughter
4]None other at all.
Then the succession shall proceed as follows:
The mother and widow shall take as SHARERS
AND daughter shall get as RESIDUARY.
1]Mother's fixed share 1/6
2]widow 's fixed share 1/8
3]Daughter shall get as residuary,the all left after giving to mother and widow as sharers[then 1=(1/6+1/8+(residue)]
Hence daughters share here shall be 1-1/6=5/6-1/8=17/24.
prabhakar singh
(Expert) 16 November 2011
Your mistake is that you are giving the daughter also as sharer which is 1/2 but as among three left first mother and widow shall be given then what ever is left there after shall be given to daughter and not fixed 1/2.
M. R. Khan
(Querist) 16 November 2011
D/Prabhakar Sir,
2 more ques. pls.
(1)In this case the following % will be applicable?
Widow 12.50 %
Daughter 70.83 %
Mother 16.67 %
Total: 100.00 %
(2)Mother in not entitled to get as residuary?
Thx ans reg,
R.Ramachandran
(Expert) 16 November 2011
Dear Md. Riyaz,
I am happy that you posted this query with your name instead of "Anonymous", and therefore I am able to attend the query, due to my own self-imposed condition that I will be attending only those queries which bears the name of the Author of the query.
As regards your query, the following is my answer:
1. As per the rules of Sunni Rules of inheritance, the eligible sharers (in this case the mother, wife and daughter)will get their fixed share of 1/6th, 1/8th and 1/2 respectively.
2. When there are sharers available (as in the present case), the residue will not pass to any distant kindred, but would rather come back to the sharers. This is called doctrine of 'return' of 'RADD'.
3. It will come back to the sharers in the proportion to their shares.
4. But, the surviving spouse (husband or wife as the case may be) will not be entitled to any share from the 'return' or 'RADD', if there are other sharers or even a distant kindred is present. Since in the instant case there are sharers viz., mother and daughter of the deceased are present, the widow will not get anything from the 'return' or 'RADD'.
5. Therefore only the mother and the daughter of the deceased are entitled to get a share from the 'return' / 'RADD' in the proportion of the share which they originally got.
R.Ramachandran
(Expert) 16 November 2011
According to me the following will be the distribution:
MOTHER = 21.88
WIDOW = 12.50
DAUGHTER= 65.62
TOTAL =100.00
M. R. Khan
(Querist) 16 November 2011
D/ R.R. Sir,
Can u give me distribution in this format:
Widow - 1/8
Daughter - ?
Mother - ?
and the way how to get these figures?
Thx and reg...
R.Ramachandran
(Expert) 17 November 2011
Dear Md. Riyaz,
Widow will get 1/8th which is 12.50 is understood.
Mother will get 1/6th which is 16.67.
Daughter will get 1/2 which is 50.00.
The total of all the three comes to: 79.17 leaving a residue of 20.83.
This 20.83 is to be divided between the mother and daughter of the deceased in the same proportion as they got the original share.
Thus the mother will get 20.83 x 16.67/66.67 = 5.21
Daughter will get 20.83 x 50/66.67 = 15.62.
Thus, widow will get = 12.50
Mother = 16.67+5.21 = 21.88
Daughter = 50 + 15.62 = 65.62
Shonee Kapoor
(Expert) 17 November 2011
enlightening Mr. Ramachandran.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
