Sunni Muslim Succession
Querist :
Anonymous
(Querist) 01 March 2011
This query is : Resolved
Hon experts,
A Sunni Muslim unmarried male has died instate leaving behind his father, mother and three brothers. How his self acquired property will devolve among the legal heirs?
Plz. Advice, and post any related judgment/material on muslim succession law in India.
With thanks and regards.
Kirti Kar Tripathi
(Expert) 02 March 2011
I hope that following article will help you is solving your query.
he Muslim law of succession is a codification of the four sources of Islamic law, which are (1) The Holy Koran itself, (2) The Sunna — that is, the practice of the Prophet, (3) The Ijma — that is, the consensus of the learned men of the community on what should be the decision on a particular point, and (4) The Qiya — that is, an analogical deduction of what is right and just in accordance with the good principles laid down by God.
A great deal of our knowledge of the Islamic law as derived from these four sources is ascribable to two books — The Fatwa Alam giri and The Hedaya by Baillee.
For instance, we learn of a discussion between the Prophet himself, and Mu'adh who had been nominated to decide disputes.
The Prophet asked him on what he would base his decisions: "I will judge them according to the Book of God", he replied. "But if that contains nothing on the point", the Prophet asked. "Then upon the precedents of the Prophet", he replied. "But if that also fails you", the Prophet asked. "Then I will make efforts to form my own judgment." And at this, the Prophet raised his hands, and said "Praise be to God, who guides the messenger of His Prophet in what He pleases."
Thus, we know that these four sources of law have binding force, having been recognised by the Prophet Himself.
We now move to the issue of succession to a Muslim male who is no more, having left behind certain properties. For the sake of simplicity and brevity, I will be confining myself only to the law of succession in its application to Hanafi Muslims, Shiite Muslims being governed by different laws of succession.
The Holy Book in Sura 4 Verse 33 says, "To benefit everyone, we have appointed sharers and heirs to property left by parents and relatives. Also, those to whom you owe your right hand, give them their due portion. For truly, God is witness to all things."
This gives us the first indication that Muslim law recognises two types of heirs, the first being Sharers, and the second being Residuaries.
A relative who is a Sharer will take a specified portion of the deceased's estate irrespective of anything else (excepting for one important exception being the Rule of Awl and Radd which are explained in full later).
A relative who is a Residuary will take whatever is left over, once the Sharers have taken their specified shares.
The Holy Book in Sura 4 Verse 7 says, "From what is left by parents and close relatives, there is a share for men and a share for women, whether the property left behind be small or large — and this share shall be fixed."
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'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) Uterine sister, and (12) Uterine brother.
Any attempt to set out the exact share of each such Sharer and its fluctuation depending on various factors will be far, far beyond the scope of this column, and I will restrict myself only to saying that the share taken by each sharer will fluctuate in certain circumstances.
For instance, a wife takes a one-fourth share in a case where the couple are 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 are 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. However, these two rules apply only in cases where the deceased has left behind no sons.
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.
Lineal descendants (such as sons) exclude brothers and sisters, and therefore, the share of brothers and sisters (whether full, consanguine or uterine) will become nil in the presence of such descendants.
We then come to the Rule of Awl and Radd. There may be, and indeed there are, cases where the arithmetical sum of the fractional shares to which each Sharer is entitled, becomes more than One. This is not an absurdity. Muslim Law clearly provides for such contingencies as well. In such cases, the ratio of the shares held by each sharer is preserved, crystallised, and reworked out so as to ensure that they succeed to the available estate in that ratio.
