Muslim Law

General Principles of Inheritance

There is no distinction between movable and immovable property or between ancestral and self-
acquired property. There is no concept of a joint family under the Muslim law.

No recognition of Right by birth- the right of an heir-apparent or presumptive comes into

existence for the first time on the death of the ancestor, and he is not entitled until then to any
interest in the property to which he would succeed as an heir if he survived the ancestor.
A, who has a son B, makes a gift of his property C. B alleges that gift was procured by undue
influence on the basis of his right to succeed. He has no cause of action as it is also a mere
chance of succession- spes successionis.

Principle of Exclusion & Principle of Representation- Sunni law does not recognize the
principle of representation at all. The principle of exclusion means that the rule of nearer degree
excluded the remoter degree. This rule is applicable to sharers, residuaries and distant kindred.
For example the father will exclude the paternal grandfather and so on.
A Sunni Mohammaden has two sons, B and C, B dies in the lifetime of A, leaving a son D. A
then dies leaving his son C and his D, his grandson. The whole of A’s property will pass to C to
the entire exclusion of D as the son’s son is remoter than a son.
B also cannot bequeath his expectant share in A’s property to his son or anyone else.
Transfer of Spes Successionis: Chance cannot be the subject of a valid transfer. Right to inherit
cannot be renounced.
In Shia law, rule of representation applies but the limitation is the principle of exclusion. Hence
Representation applies only in the same level/generation.

Vested Interest upon Inheritance- The heirs take a vested interest in the estate of the intestate,
the moment succession opens and their ownership in their respective shares is not dependent
upon it actual division by metes and bounds. If anyone dies in between the opening of the
succession and the actual division of property, it does not matter- his property will go to his legal
heirs.

Inheritance in the case of the Child in Womb A child in the womb of its mother is entitled to
inherit. It would be treated as being in existence at the time when succession opens. Its share is
kept reserved. If such child in the womb is not born alive, the share already vested in it is
divested and it is presumed as if there was no such heir(in the womb) at all.

Primogeniture Primogeniture is a principle of inheritance under which the eldest son of the
deceased enjoys certain special privileges. Muslim law does not recognize the rule of
primogeniture and all sons are treated equally. However under Shia law, the eldest son has an
exclusive right to inherit the father’s garments, sword, ring and copy of the Quran provided the
eldest son is of sound mind and the father has left certain other properties besides these articles.

Disqualification
1. Difference of Religion- Under the pure Muslim law, a non-muslim is not entitled to
inherit the property from a deceased Muslim. This disability is removed by the Caste
Disabilities Removal Act. A converted heir will continue to be governed by Muslim law
of inheritance but his non-Muslim descendants will not inherit from the deceased
Muslim.
2. Homicide- Even through testamentary succession or by intestate succession cannot
inherit the property. Under Shia law, disqualification is operative only where death was
caused intentionally.
3. Illegitimacy- under Sunni law- an illegitimate child is deemed to be related to its mother
and inherits from her and her relations.
Illegitimate child does not inherit from mother, father or any relatives under Shia law
A child who is born after six months from the date of contracting the marriage, is
presumed to be a legitimate child unless it is not a pre-mature child and provided the
father does not disclaim the paternity by accusation of adultery.
If there is a doubt about the date of contracting the marriage- acknowledgment of
paternity by the father can be taken into account.
Upon dissolution of marriage, rules governing the legitimacy – child considered to be
legitimate if born within – Shias- 10 lunar months, Hanafis- 2 years and for Shafe’iis and
Maliki – four lunar years.
4. Adopted child: Adoption is not recognized by muslim law, therefore, adopted person is
not entitled to anything even on the basis of a will.
5. Step children – Step mother or a step son are not heirs. Step child can inherit only from
its natural father/mother.
6. Marriage under Special Marriage Act- ISA will apply.
7. Escheat- no heirs- property will be inherited by the Government.

8. Exclusion of daughters – a daughter is entitled to succeed to the property of both the

parents but if there is a custom or statute excluding the right of the daughter, they should
be treated as non-existent and the shares.

Definitions:
a. A true grandfather- no female intervenes- father’s father, father’s father father. Remoter
is excluded by nearer.
b. A true grandmother is a female ancestor and between whom and the intestate no false
grandfather intervenes- mother’s mother, father’s mother, father’s father’s mother.
c. False Grandfather or grandmother- if there is in between a grandfather and the intestate-
there is an intervention of one or more females. Mother’s father, mother’s mother’s
father, mother’s father’s father, father’s mother’s father. Likewise if there is any maternal
grandfather between the female ancestor and the intestate- the said ancestor is a false
grandmother. For example mother’s father’s mother.
d. Uterine brother/sister - from same Mother and different father
e. Consanguine sister or brothers- From same Father but different Mother
f. Full Brother/Sisters - from the same father & mother
g. Sharers- Sharers include both female and male heirs whose shares are fixed. Their shares
can change according to the presence of other heirs.
h. Residuaries- Reiduaries are those persons who are entitled to the residue of the property
of the deceased which is left after allotting the specific shares to the sharers. The
residuaries’ shares are not specified.
i. Distant Kindred- Blood relations who are neither the sharers nor the residuaries.

Sunni law of inheritance-

Doctrine of Radd- Eligible sharers are given their fixed shares first and then the rest of the
shares go to the residuaries. In the absence of the residuaries and the sharers, the shares then
go to the distant kindred. Now if there are no residuaries, the residue in the presence of
sharers does not go to the distant kindred but comes back to the sharer. The only exception to
the rule is that the spouse cannot be the beneficiary to this rule of radd and therefore in the
presence of distant kindred, the husband or wife will not be entitled to more property than as
a sharer. If there are no other heirs, then the widowed spouse will be entitled to radd.

Doctrine of Aul- The sharers are entitled to the property in fixed shares. The sum total may
become greater than the unity.
For example- A muslim woman dies and is survived by her husband H and two full sisters S1
and S2. ½ and sisters will get 2/3rd
½ = 3/6
2/3= 4/6
Total = 7/6- Denominator is increased to the numerator- 3/7 and 4/7

There are five primary heirs: Surviving Spouse, son, daughter, mother and father. Son is a
residuary but always inherits. They are not excluded and invariably inherit and are no
excluded by any relation.
The presence of the father excludes the brothers and the sisters whether full, consanguine or
uterine and a true grandfather from inheriting.
Sharers
Categories under the Sharers:
a. Heirs affiliated by marriage or affinity:
 1. Husband
2. Wife
b. Heirs affiliated by blood or consanguinity
1. Male ascendants- Father, true grandfather how high soever
2. Female Ascendants- Mother, true grandmother, how high soever
3. Female Agnatic descendants- daughters, son’s daughter how low soever
4. Female Agnatic collaterals- full sisters, consaguine sister
5. Cognatic collaterals- Uterine brother, uterine sister.
Devolution of shares amongst sharers:
a. Husband- husband gets ½ if there is a) no child b) child of son how low soever (hls)- if
there is a) child or b) child of son (hls) then husband gets 1/4th.
b. Wife gets 1/4th if there is a) no child b) child of son how low soever (hls)- if there is a)
child or b) child of son (hls) then the wife gets 1/4th.
c. Father is treated as a residuary if there is no a) child b) child of son how low soever (hls).
If there is a child or child of a son hls- then he gets 1/6th.
d. True GF can only inherit in the absence of the father. If there is no father, rules which are
applicable to the father will apply to the grandfather.
e. Share of the mother is 1/3rd in the absence of (a) child, or (b) child of a son (hls), (c) two
or more brothers or sisters or one brother plus on sister, whether full, consanguine or
uterine.
In presence of the abovementioned relations, mother’s share is 1/6th.
The consensus of opinion is that the word "akhwatun" used in the Quranic text means
two or more brothers or sisters of any kind. So that any combination of full, consanguine
or uterine brothers and sisters, if two or more will mean that the mother inherits a one-
sixth share.
f. True Grandmother- A paternal grandmother is excluded from inheritance in the presence
of (a) mother, or (b) father or (c) a nearer true grandmother whether maternal or paternal.
A maternal grandmother is excluded from inheritance in the presence of (a) mother, or
(b) a nearer maternal or paternal grandmother.
g. Daughter- As a sharer- ½. But if there is a son- she inherits as residuary and inherits half
the share as a son.
h. Son’s Daughter- will inherit ½ as a sharer only in the absence of (a) son or (b) a daughter
(c) son’s son. In absence of a son or a son’s son and in the presence of only one daughter,
the son’s daughter (whether one or more) will take 1/6th. In presence of the son’s son, she
will become a residuary and inherit half the share of the son’s son.
i. Son’s son’s daughter- ½ in absence of (a) son or (b) daughter or (c) son’s son or (d) son’s
daughter or e)son’s son’s son. In absence of a son or a son’s son or a son’s son’s son and
in the presence of only one daughter or son’s daughter, the son’s son’s daughter (whether
one or more) will take 1/6th. In presence of the son’s son’s son, she will become a
residuary and inherit half the share of the son’s son’s son
 j. Full Sister- the share of one full sister is ½. In the presence of a full brother- she becomes
a residuary and inherits half as the full brother. A full sister is excluded from inheritance
in the presence of (a)child, or (b) child of a son hls or (c) father, or (d) father’s father.
k. Consaguine Sister- The share of one consanguine sister is ½. With one full sister- the
share is reduced to 1/6 for the consanguine sister (whether one or more). With a
consanguine brother, the consanguine sister inherits as a residuary. A consaguine sister is
excluded from inheritance in the presence of (a) child, or (b) child of a son hls or (C)
father or (d) father’s father (e) two full sisters or (f) one full brother).
l. Uterine Brother- The share of one uterine brother is 1/6. Uterine brother is excluded from
inheritance in the presence of a)child b) child of a son hls c) father or d) father’s father.
m. Uterine Sister: Share is one is 1/6th. Uterine sister is excluded from inheritance in
presence of (a) child or (b) child of a son hls (c) father, or (d) father’s father

Sharers Normal Share Conditions under Variation of

which the normal shares
When only one When two or more
share is inherited
heir is present heirs are present-
of two or more
collectively
Husband ¼ In the presence of 1/2 in absence of a
a child or child of child or child of a
a son how low so son how low so
ever ever
Wife 1/8 1/8 In the presence of 1/4 in absence of a
a child or child of child or child of a
a son how low so son how low so
ever ever
Daughter 1/2 2/3 In the absence of a In presence of a
son. son she becomes a
residuary
Father 1/6 In the presence of In absence of a
a child or child of child or child of a
a son how low so son how low so
ever ever the father
inherits as a
residuary.
Mother 1/6 In the presence of 1/3 in the absence
a child or a child of a child or child
of a son how low of a son how low
so ever, or two or so ever, and not
more brothers or more than one
sisters, or even one brother or sister (if
full, consanguine any); but if the
or uterine brother wife or husband
and one such and the father, is
sister. also present, then
only1/3 of what
remains after
 deducting the share
of the spouse.
True grandfather 1/6 In the presence of In absence of a
a child or child of child or child of a
a son how low so son how low so
ever, and in ever, the true
absence of the grandfather
father or a nearer inherits as a
true grandfather. residuary,
provided there is
no father or nearer
true grandfather.
True grandmother 1/6 1/6 A maternal true
grandmother takes
in absence of a
mother, and a
nearer true
grandmother and a
paternal true
grandmother takes
in absence of a
mother, father, a
nearer true
grandmother and
an intermediate
true grandfather.
Son’s daughter ½ 2/3 In absence of a In absence of a
how low so ever son, daughter, a son, higher son’s
higher son’s son, son, or an equal
higher son’s son’s son and
daughter, or an when there is only
equal son’s son. one daughter, or
higher son’s
daughter the
daughter or higher
son’s daughter will
take 1/2 and the
son’s daughter
how low so ever
(whether one or
more) will take
1/6.
Son’s daughter 1/2 2/3 In absence of a In absence of a son
son, daughter, or or son’s son and in
son’s son presence of a only
one daughter the
son’s daughter
(whether one or
more) will take
1/6. (In presence
of a son’s son, she
becomes a
residuary.)
Son’s Son’s ½ 2/3 In absence of a In absence of a
Daughter son, daughter, son, son’s son or
son’s son, son’s son’s son’s son
daughter, or a and in presence of
son’s son’s son. only daughter or
son’s daughter, the
son’s son’s
daughter (whether
one or more) will
take 1/6. (In
presence of a son’s
son’s son she
becomes a
residuary.)
Uterine brother 1/6 1/3 In absence of a
Uterine sister child, child of a
son how low so
ever, father or true
grandfather.
Full sister 1/2 2/3 In absence of a In presence of a
child, child of a full brother she
son how low so becomes a
ever, father, true residuary.
grandfather, full
brother.
Consanguine sister 1/2 2/3 In absence of a When there is only
child, child of a one full sister and
son how low so she succeeds as a
ever, father, true sharer, the
grandfather, full consanguine sister
brother, full sister, (whether one or
or consanguine more) will take
brother. 1/6, if she is not
otherwise
excluded. (With
the consanguine
brother she
becomes a
residuary).

Class II Heirs: Residuaries:

a. Son: when there is no daughter, the son takes the entire residue, but if the son is present,
the son gets double the share of the daughter.
b. Son’s son’s hls: Nearer son’s son excludes the remoter. Two or more son’s son inherit
equally. Son’s son will get double the share of a son’s daughter.
c. Daughter: becomes a residuary when son is present. Daughter gets half of the son.
d. Father: as a residuary- father gets the entire residue.
e. True GF: as a residuary, a True GF takes the entire residue but a nearer true grandfather
excludes the remoter.
f. Full Brother: If there is no full sister, the full brother inherits the entire residue, but if
there is a full sister, he inherits double as the full sister.
g. Full Sister: In absence of a full brother and other residuaries mentioned above, full sister
will be again treated as a residuary provided there is a daughter/s, or son’s daughter/s hls
or one daughter and a son’s daughter hls.
h. Consanguine Brother: A consanguine brother gets double the share of the consanguine
sister.
i. Consanguine sister: Even in the absence of the consanguine brother or any of the
abovementioned residuaries, she takes property as a residuary provided there is a a
daughter/s, or son’s daughter/s hls or one daughter and a son’s daughter hls.
j. Full Brother’s son
k. Consanguine Brother’s son
l. Full Brother’s son’s son’s
m. Consanguine Brother’s son’s son
n. Full paternal uncle
o. Consanguine paternal uncles’s son
p. Full paternal uncle’s son’s son
q. Consanguine paternal uncle’s son’s son