FAMILY LAW-II

PROJECT ON:

SUNNI LAW OF INHERITANCE RELATING TO

DISTANT KINDRED

BHARAT VIJAY P
847
6TH SEMESTER
NUALS

TABLE OF CONTENTS

1.
2.
3.
4.
5.
6.
7.

Introduction
Classes Of Heirs
Distant Kindred
Exclusion
Classification Of Uterine Heirs
Principles Of Distribution And Exclusion
Rules Among Distant Kindred
8. Bibliography

REFERENCES
1. http://muslimcanada.org/muspersonallaw12.html
2. http://www.lawyersclubindia.com/articles/-8220-SUCCESSION-UNDERHANAFI-LAW-8221--424.asp#.VvjCgSKUPBo
3. http://www.academia.edu/5466622/Succession_under_Muslim_Law
4. http://www.shareyouressays.com/117455/categories-and-classes-of-legalheirs-under-the-sunni-muslim-laws

INTRODUCTION
Muslim jurists gave a great deal of importance to the laws of inheritance and they
were never tired of repeating the saying of the Prophet: Learn the laws of inheritance and
reach them to the people; for they are one half of useful knowledge; and modern authors have
admired the system for its utility and formal excellence.

(1) Sharers or Quranic Heirs:

Sharers are those heirs who are entitled to get a prescribed share from the heritable
property. The Sharers and their respective shares in the property of a deceased are given in
Quran. The Sharers are, therefore, also called as Quranic heirs.
In the distribution of property, the Sharers get preference over the other class of heirs,
therefore, first of all the respective share is allotted to each Sharer. It may be noted that
Sharers are those heirs whose respective shares are given in Quran; therefore, their shares
cannot be altered by any human effort.

(2) Residuaries or Agnatic Heirs:

Residuaries are those heirs who inherit only the residue of the property after allotment
of respective shares to the Sharers. Obviously, the Residuaries have no specific share of their
own. After giving the property to the Sharers in their fixed shares, if there remains some
property that remaining property (residue) is available to the Residuaries.
The residue may differ from case to case. If there are no Sharers, the whole is inherited by the
Residuaries. Residuary heirs are also termed as Agnatic heirs because they inherit through
male relations.

(3) Distant Kindred or Uterine Heirs:

All those persons who are related to propositus through blood but could not be
included as heirs in the class of Sharers or of Residuaries, are called distant kindred. If a
propositus has neither Sharers nor Residuaries, the properties are inherited by his Distant

Kindred. Distant Kindreds cannot inherit in presence of any Sharer or Residuary. The heirs
included in this class are also termed as uterine heirs.

(B) Subsidiary Classes:

Besides the above-mentioned three classes of heirs, there are four more categories of
legal heirs. The heirs included in any of the following classes are called subsidiary heirs and
inherit only in exceptional cases;

a. Successor by contract
b. Acknowledged kinsman
c. Universal legatee, and
d. The State (through the process of escheat).

Scheme of Distribution:
In the distribution of property among legal heirs of a Sunni propositus, the following
scheme is followed. First of all, it is ascertained as to who are the Sharers (Quranic heirs) of
the deceased. After ascertaining the Sharers, their respective shares, which are already fixed
for them, is allotted to each of them. If the whole property exhausts after distribution of the
shares among each of them, the process of distribution does not proceed further.
But, if there still remains some property, then the second step is to distribute the remaining
property (residue) among the Residuaries who constitute Class II of legal heirs. However,
where a propositus has no Sharers at all, the whole property is inherited directly by the
Residuaries. If the propositus has neither any Sharer nor any Residuary then, in the third
instance, the property is distributed among the Distant Kindreds.
It is to be noted that a Distant Kindred cannot inherit in presence of any heir belonging to the
class of Sharers or Residuaries. Where a propositus has no heir belonging to any of the three
principal classes (although such cases are rare) the property devolves directly upon the
successive subsidiary heirs, one by one in the order of priority.

In other words, if a propositus has no Sharer, Residuary or a Distant Kindred as his heir, his
property is inherited by a successor by contract, if any, and in his absence, by an
acknowledged kinsman, if there be any and, in his absence, too, it is inherited by the
universal legatee if there is such a legatee under any will left by the deceased.
But, if there is none from among the above mentioned classes of heirs, the properties of the
deceased are ultimately inherited by the State. State is the ultimate heir of every propositus.
However, the practical allotment of respective shares to each legal heir is not as simple as it
appears from the scheme of distribution stated above. There are various rules and exceptions
which make the distribution difficult. For instance, there are rules of exclusions under which
one heir (of the same class) may be excluded by the presence of some other heir.
In certain cases, an heir may not be totally excluded but, his share, may be reduced in
presence of some other heir. Moreover, in some cases an heir may inherit in double capacity
e.g. father is a Sharer but, in certain cases he inherits also as a Residuary. In the following
lines attempt has been made to enumerate the heirs of each class, their respective shares and,
the rules relating to the distribution of properties among them.
CLASSES OF HEIRS
The Hanafi jurists divide heirs into seven classes, the three Principal and four Subsidiary
Classses.
(A) The Three Principal Classes:
1. Quranic Heirs- called Sharers.
2. Agnatic Heirs- called Residuaries.
3. Uterine Heirs- called Distant Kindered.
(B) The four Subsidiary Classes:
1. The Successor by Contract;
2. The Acknowledged Kinsman;
3. The Sole Legatee;
4. The State, by Escheat.
These three principal classes of heirs together comprise all the blood relations of the deceased,
whether they are agnates or cognates and one relation by marriage, namely, the husband or the
wife. The subsidiary heirs succeed only by way of exception.
The rules maybe briefly stated as follows:

1.

Where there are no Quranic or Agnatic Heirs, the estate is divided among

2.

Uterine Heirs.
Where there is a husband or wife and Uterine heirs, the surviving spouse
will take his or her Quranic share and the residue of the estate will be
divided among Uterine Heirs.

DISTANT KINDRED
CLASS III, UTERINE HEIRS (dhawl-arhm)
A distant kinsman in every relation, who is neither a sharer nor a residuary- so the
Sirjiyyah. The expression dhawl-arhm means kindered and rahm in this context cannot be
rendered as womb. Female agnates and cognates, male and female come under this class.
These two groups together constitute Class III of the Sunnite Heirs, so aptly designated by
Ameer Ali as Uterine Relations.
In the absence of the sharers and the residuaries, the estate, devolves on the distant kindred.
There is only one case in which the distant kindred inherit along with a sharer. When the only
surviving Sharer is a husband or a wife and there is no residuary then the husband or wife
takes his or her share, and the rest of the estate goes to the distant kindred.
This class of heirs are known as Dhauil-arham or distant kindred. They include the relations
who are neither sharers nor 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 which are mentioned below.
CLASSIFICATION OF UTERINE HEIRS
GROUP I, DESCENDANTS
1. Daughters children and their descendants.
2. Children of sons daughters, h.l.s., and their descendants, ad infinitum.
GROUP II, ASCENDANTS
1. False grandfathers, h.h.s.
2. False grandmothers, h.h.s.
GROUP III, COLLATERALS

(A) DESCENDANTS OF PARENTS.

1. Full brothers daughters and their descendants.
2. Consanguine brothers daughters and their descendants.
3. Uterine brothers children and their descendants and remoter relations.
(B) DESCENDANTS OF GRANDPARENTS (true as well as false).
1. Full paternal aunt and her descendants.
2. Consanguine paternal aunt and her descendants.
3. Uterine paternal uncles and aunts and their descendants.
4. Full paternal uncles daughters and their descendants.
5. Consanguine paternal uncles daughters and their descendants.
6. Uterine paternal uncles children and their descendants;
and remoter relations.

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.
Macnaghten says:
In these provisions we find ample attention paid to the interests of all those
whom nature places in the first rank of our affections; and indeed it is

difficult to conceive any system containing rules more strictly just and
equitable.

PRINCIPLES OF DISTRIBUTION AND EXCLUSION

RULE 1.
Members belonging to Class III succeed only in the absence of members of
Class I and Class II. They also succeed if the only surviving member in Class I
is the husband or the widow of the deceased. The Uterine heirs are divided into
three groups: (I) descendants, (II) ascendants, (III) collaterals; group (I)
excludes group (II) and group (II) excludes group (III).
RULE 2.
Among descendants, priority is determined by the application of the following
two fundamental rules:
(i)

The nearer in degree excludes the more remote. For example, a

daughters son or a daughters daughter inherits in preference to a
sons daughters son. The first two are two degrees removed, and the
last is three degrees removed from the deceased, and therefore he is

(ii)

excluded.
Where the degree are equal the children of Quranic and Agnatic
Heirs are preferred to those of Uterine Heirs. For instance, a sons
daughters son, being the child of a Quranic Heir- the sons daughteris preferred to the daughters daughters son, who is the son of a
Uterine Heir.

ORDER OF PRIORITY
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.

RULES AMONG DISTANT KINDRED

Class I: Descendants:
In this class, the order of priority is:
(i) Daughters children.
(ii) Sons daughters children.
(iii) Daughters grandchildren, and
(iv) Sons sons daughters children and the remoter heirs.
It is to be noted that heirs of a group are entitled to inherit strictly according to the order of
succession given above. That is to say, relations in (ii) above may inherit only in absence of
relations in (i) and so on. Allotment of the shares among Distant Kindreds of this class
(descendants) is made in accordance with the following rules:
Rule (1):
Where the intermediate ancestor of the claimants are of similar sex, the property is divided
among them as per capita subject to the general rule that share of a male is double the share
of female. For example, if the Distant Kindreds are (a) daughters son (b) daughters
daughter, the sex of intermediate ancestor of both of them is the same.
But, as the claimants themselves differ in sex, therefore, the property is distributed among the
male and female claimants in the ratio of 2: 1.

Similarly, where the Distant Kindreds are (a) daughters sons son and (b) daughters sons
daughter, the estate would devolve as under:

Here the intermediate ancestor of the claimants is son. The property is to be divided between
the claimants in the ratio of 2: 1 as they differ in sex.
Rule (2):
Where the intermediate ancestor of the claimant (distant kindred) differs in sex, the property
is distributed according to following rules:
(a) When there are two Distant Kindreds one claiming through one line and the other
claiming through another line then, the following method is applied. Beginning from
propositus, one has to stop at the first line of descent in which the sexes of intermrediate
ancestors is different.
At this stage, the shares are allotted to these ancestors. Now, the same shares descend to the
claimants. For example, the Distant Kindreds are (a) daughters sons daughter and (b)
daughters daughters son.

Here, we find that ancestors differ in their sex in the second line. At this stage we have to
divide the property among son and daughter in the ratio of 2: 1. Now, the descendant of son
would get sons share and the descendant of daughter would get her share. Thus, the
daughters sons daughter would get 2/3 and daughters son would get 1/3.
(b) When there are three or more Distant Kindreds claiming through different line of descent,
the rule is to stop at the stage where the sexes of the intermediate ancestor differ and to assign
the shares to male and female ancestors in the ratio of 2: 1; but unlike (a) above the individual
share of each ancestor does not descend to his or her descendants.
The collective share of all the male ancestors will be divided among all the descendants
claiming through them, and the collective share of all the female ancestors will be divided
among their descendants. This rule may be illustrated by the following example. A Muslim
dies leaving (a) daughters sons daughter (b) daughters daughters son and (c) daughters
daughters daughter.

Here, the ancestors differ in sexes in the second line of descent. In this line we find one male
and two females. Applying the general rule that share of a male is double the share of a
female, we may distribute the property at this stage. Thus we find that shares of the ancestors
of this line are as under:

Now, we find that in the II line of descent, the son (i.e. daughters son) stands alone, therefore
his share (1/2) descends to his daughter (i.e. daughters sons daughter). Again, we find that
the collective share of two daughters is 1/2. This property is to be divided among the son
(daughters daughters son) and the daughter (daughters daughters daughter) in the ratio of
2: 1. Thus, finally the shares are:
Daughters sons daughter 1/2 or 3/6
Daughters daughters son 2/3 of 1/2 = 2/6
Daughters daughters daughter 1/3 of 1/2 = 1/6
Class II: Ascendants:
In the absence of Distant Kindreds of Class I, the estate devolves upon Class II of the
Distant Kindreds which consists of the ascendants of the propositus. The property is
distributed among the Distant Kindreds of this group in the following order of succession:
(i) Mothers father.
(ii) Fathers mothers father and monthers mothers father in the ratio of 2: 1.
(iii) Mothers fathers father and mothers mothers father in the ratio of 2: 1.
The property among the above mentioned relations is distributed in accordance with the
following rules:
Rule (1):
The heir who is nearer in degree excludes the remoter heir.
Rule (2):

Among the claimants of the same degree, those connected with the propositus through sharers
are preferred over those who are connected through Distant Kindreds.
Rule (3):
Where the claimants belong to the paternal as well as to maternal side, 2/3 is assigned to the
paternal side and 1/3 to the maternal side. Thereafter, the share assigned to the paternal side
(2/3) is divided among the ancestors of the father and the share assigned to the maternal side
(1/3) is divided among the ancestors of the mother.
Class III: Collaterals: Descendants of Parents:
The descendants of brothers and sisters, who are neither Sharers nor Residuaries, are included
in Class III of the Distant Kindreds. In the devolution of estate among the heirs of this class,
following rules are applicable:
Rule (1):
The nearer in degree excludes the remoter. For example, the children of the brothers and
sisters being nearer in degree exclude the grand children of such brothers and sisters
Rule (2):
Where the claimants belong to the same degree of relationship, the children of Residuaries
are preferred to the children of Distant Kindreds. Thus, a brothers sons daughter (i.e. child
of the Residuary, brothers son) is preferred to sisters daughters son (i.e. child of a distant
kinswoman, sisters daughter).
Rule (3):
Among the claimants of the same degree of relationship [who are not excluded under Rule
(2) above], the descendants of full brother exclude the descendants of consanguine brothers
and sisters.
However, the descendants of full sisters do not exclude the descendants of consanguine
brothers and sisters and get the residue. The descendant of full or consanguine sisters also

does not exclude the descendants of the uterine brothers and sisters. They inherit
simultaneously.
Class IV: Collaterals: Descendants of Ascendant h.h.s:
This category of Distant Kindreds consists of uncles (or aunts) and the descendants of the
uncle and aunts. It may be noted that practically the cases relating to the devolution of estate
among the Distant Kindreds of this class are rare.
A detailed account of the rules of distribution of estate among the heirs of this category has,
therefore, been avoided. However, a curious student may find full treatment of the rules of
distribution of estate among the heirs of this complicated class of Distant Kindreds in
authorities like Mulla, Tyabji and Wilson.
Cases relating to Uterine Heirs of Group III arise but rarely and no new principles of
social justice are established or new canons of juristic reasoning advanced.

BIBLIOGRAPHY
1. G.C.V. Subba Rao's Family Law in India

2. Paras Diwans Family Law

3. B.M Gandhis Family Law