INTRODUCTION. The law of succession in WE havethe Hindu Succession Act, the Parsi Succession Act, the Indian Succession Act(which applies to Christians for the purposes with which we are now concerned),and even a Jaina Succession Act (which has of course now fallen into disuse,since Buddhists, Jains, and Sikhs are all now governed by the Hindu SuccessionAct). As far as Muslims are concerned, the law of succession falls into twobroad streams, the Shia law of succession and the Hanafi law of succession.Both these laws of succession form part of the common law of The Muslim law of inheritance is a superstructureconstructed on the foundation of pre-Islamic customary law of succession. InIslamic law distinction between the joint family property and the separateproperty has never existed, and in India Muslim law does not recognize thejoint family property, though among the South Indian Muslims having matrilinealsystem, the institution of tarwad isrecognized. Since under Muslim law all properties devolve by succession, theright of heir-apparent does not come into existence till the death of theancestor. Succession opens only on the death of the ancestor, and then alonethe property vests in, the heirs. . Customary Principles of succession.-In the'pre-Islamic It is necessary to notice that the Koran did not create a newstructure of law of succession, but merely amended and modified .the customarylaw of succession so as to bring it in conformity with the Islamic philosophy.What has happened is this that those persons who were not heirs under thecustomary law have been made heirs (called sharers or the Koranic heirs) andspecific shares have been allotted to them. For instance, if A, a Muslim, diesleaving behind a widow, W and two sons S and S1, then W will take 1/8 as aspecified share and S and SI will take the residue, i.e., 7/8.Thissuperimposition of the Koranic principles on the customary law of inheritancehas led to divergence of opinion among the Shias and Sunnis, resulting in thepropagation of two different rules of inheritance (i) The Hanafis allow theframework or principles of the pre-Islamic customs to stand; they develop oralter those rules in the specific manner mentioned in the Koran, and by the Prophet.(ii)The Shias deduce certain principles, which they hold to underlie the amendmentsexpressed in the Koran andfuse the principles so deduced with the principles Underlying the pre existingcustomary law, and thus raise up a completely altered set of principles andrules, derived from them. , The Hanafi law: general principles. -The Hanafis interpret the principles of customary law and Islamic law in such amanner as to blend them together in a harmonious manner; the customary, heirsare not deprived of their right of Inheritance in the estate of the deceased,but only a portion out of the estate is taken out and given to the heirsenumerated/in the Koran. This means that the basic structure of customarysuccession, the rule of agnatic preference, is retained-the agnates are stillpreferred over cognates. The, Koranic succession takes the agnatic principlesfurther by recognizing the right of female agnates. Thus, if there is a femaleagnate (as specified -in the Koran) near to a male agnate (as specifiedunder the customary law), then, by virtue of nearness of her claim to take ashare in the estate of the deceased, she is allowed to take a share. But thereby,the male agnate is not deprived of a share, and male agnate takes the residue.Or, where the female agnate and the male agnate are equally near to thedeceased, then the male heir takes twice the share of the female heir. It is submittedthat this principle implies not only to female agnates but also to male agnates(i.e., those heirs whoare made heirs by the Koran) ~ andit is wrong to generalize that the male heir as such always takes double shareof a female heir. Thus, uterine brother and father as sharers do not take morethan the uterine, sister and mother respectively. It should also be noticedthat most of the newly created heirs are the near blood relations of thedeceased who were ignored in the customary law. The Koranic imposition of newheir does not deprive the male agnates of their inheritance, but their rightsare liable. To be affected if there exists a Koranic heir...If we examine therights of the koranic heirs vis-visthe customary heirs, we find two situations: (i) the Koranic heirmay be nearer to the customary heir. "1n such a case a specified portionof the estate is given to the Koranic heir at the first instance and thenwhatever is left' to be given to the customary heir. If there is more than oneKoranic heir. then all of them take their specified portions. and the residuegoes to the customary heirs. For instance, when a deceased has left a daughterand a brother, the former will take 1/2 (as specified by the Koran) and thebrother will take the residue which is 1/2. If the deceased had left twodaughters and a brother, then, the daughters together will take 2/3 (asspecified by the Koran) and the brother will take the residue which is 1/3.(ii) The Koranic heirs and the customary heirs may be equally near to thedeceased. In such a case double portion is given to the customary heir. In thissituation the Koranic heir is a female of equal proximity with the customaryheir, but she was disqualified under the customary law on account of her sex.Now she has been made to rank equally with the customary heirs in respect ofthe residue of the estate after the prior claim of the Koranic heirs aresatisfied. As to the rights of heirs vis-a-viseach other, if the heirs of the same class differ from each other intheir sex, they- inherit e9ually (here the principle of male tak41g twice theshare of a female goes not apply). For instance, if a Muslim dies leavingbehind father and mother, then each takes 1/6 of the estate. In this caseneither can claim priority over the other on the basis of greater proximity oron the basis of customary law. \ The modifications thus made by the Koran as interpreted by the Hanafisare restricted to agnates, with a few exceptions where under some cognates,such as uterine brother and uterine sister, are also included. Themodifications do not go to any collateral remoter than sisters. Further, thesemodifications in their application to relations other than descendants arehedged with exceptions. The Hanafis have so interpreted the Koranic rules thatthe customary heirs right to inheritance is not affected, though a slice of theestate is taken away for the Koranic heirs. Sometimes the customary heirs arealso required to share the residuary estate with the Koranic heirs, and in thatprocess, sometimes, no residue of the estate is left for them. (But thishappens in a very few cases). Under the hanafi law, the general rule of distributionof the estate is per capita andnot per stripes. Ithana Ashari law; General principles.- The basic differences between theIthana Asharilaw and the Hanafi law arise on account of the fact that the latter interpretthe Koranic rules strictly and hold that the Koranic rules are nothing buttransposition of certain rules on the customary law of succession, while theformer interpret the Koranic rules so widely as if they lay down an independentscheme of succession. Thus, the Ithana Ashari interpretation of the Koranic rules does notrecognize the prior rights of agnates over cognates or of males over females.With the exception of the rights of husband and wife, the Shia law lays downthat the estate of the deceased devolves on blood relations equally, thoughamong themselves they take per stripe:the females are allotted half the share allotted to the males in each grade.This also results in descendants, ascendants and collaterals inheriting side byside. Doctrineof Representation and Stripttal Succession, Under Hindu law, the doctrine of representationis utilized for two purposes: (i) for determining the heirs, and (ii) fordetermining the quantum of share of an heir or a group of heirs. The per stripes rule means thatwhere there are branches, the division of property takes place according to thestock, i.e., at the,places where branches bifurcate. Thus, suppose P dies leaving behind a son, sand grandson ss, who is a son of a predeceased son. By the application of thedoctrine of representation, ss, representing his father, will be an heir andwill take the same share which his father would have taken l).and he beenalive. This means' that s will take 1/2 and ss will 1/2. Under the hanafi law,no aspect of the doctrine of representation is recognized, with the result thatin the above illustration the son will take the entire property and no grandsonwill take any share. The result under the Shia law is also the same. But theShia law recognized the doctrine of representation for the second purpose, viz., for determining quantumof shares in certain cases. For instance, if P dies leaving behind three grandsons,A, B and C from a son S, and two grandsons, X and Y from a predeceased son S1,and a grandson Q from a predeceased son S2, then the distribution of assetswill take place not in accordance with grandsons, but in accordance with sons.In this example, the share of S, S1 and S2 will come to1/3 each. S's 1/3 will goto A, B and C each taking 1/9; S1's 1/3 will go to X and Y each taking 1/6 andS2's 1/3 will go to Q. Under the Hanafi law each grandson will take per capita, i.e., A, B, C, X,Y and Q, each will take 1/6 share in the assets. The doctrine of representationand the striptal succession for the purpose of calculating the shares of certamheirs is the basic principle of the Shia law and is applied throughout. This isnot confined to descendants but is also applied to ascendants. Thus, thedescendants for the deceased son, deceased uncle, deceased aunt, deceaseddaughter, deceased brother, deceased sister, if they are heirs, are all coveredby the doctrine of representation. Similarly, the rule is applied to greatgrandparents who would take the same share which grand parents would have takenhad they been alive. The father's uncles and aunts are also covered by therule. Definitions. Agnates.-An agnate is a. relation who is related to thedeceased whole through males. Thus, the following are the examples of agnates,son, son's son,son's son's son, son's daughter, son's son's daughter, father'sfather, father's,mother, father's father's .father; father's father's,mother.. Cognates.-A cognate is a relation who is related to thedeceased through one, or more females. For example, the following are cognates:daughter's son, daughter's daughter, mother's father, father's mother's father. Collaterals.-Collaterals are descendants in the parallellines from the common ancestor or ancestress.Collaterals may be agnates or cognates. Thus, consanguine brothers and sisters,paternal aunts and uncles are agnate collaterals. Maternal uncles , aunts,uterine brothers and sisters are. Cognate, collaterals. Heir.-A.person who is entitled to inherit the estate of another after his deaths known as an heir. .' . Truegrandfather.-A male ancestorbetween whom and the deceased no female intervenes is known as the truegrandfather. For instance, the father's father, father's father's father andhis father how high so ever are all the true grandfathers. . Falsegrandfather.-A. Male ancestorbetween whom' and. the deceased, a female intervenes is. known as the falsegrandfather. For instance, mother's father, mother's father, father’s mother'sfather are false grandfathers. True grandmother. -A female. Ancestor, between whom and the deceasedno false grandfather intervenes are known as the true grand mother. Thus, father’mother, mother's mother, father's mother's mother, father's father's mother.Mother’s mother's mother are all true grandmothers. ' Falsegrandmother.-A female ancestorbetween whom and the deceased a false grandfather intervenes. Thus, mother'sfather's mother is a false grandmother. . Son's son howlow so ever.-Lineal maledescendants are known as son's son how low so ever. For instance, son's son,son's son's son and so on, are all son's son how low soever. . Son's daughterhow low soever.-The femalechildren of lineal male descendants are known as son's daughter how low soever~Thus, son's daughter, son's son's daughter, and so on, "are also son'sdaughter how low soever. HANAFI LAW OF INHERITANCE. Under any law of intestate succession, twoquestions that arise are: (i) who are the heirs of the deceased, and (ii) towhat share the heirs are entitled. Muslim law-givers have gone into details inlaying down the. categories of the persons who are entitled to participate inthe inheritance, and the respective shares to which each categories of heirsare entitled to receive. Heirs Islamiclaw superimposed on the customary structure certain blood relations who areeither equally near, or more near, to the deceased than the customary heirs.Among these new heirs are certain females, and some ascendants and collaterals.The spouse of the deceased is allowed to take a share in the inheritance, as a.relation by affinity. Looked at in' this the perspective, apart from the spouse(husband or wife) of title deceased, the other heirs specifically mentioned inthe Koran are at parwith customary heirs. Thus, son~ or son's son how low so ever, is entitled toinherit under the customary law. The Koransuperimposed daughter, son's daughter or son's'son's daughter howlow so ever, and gave her a specified share. It should be noted that daughter’sdaughter, who is a cognate, arid therefore remoter than the son or son's son,is not included. Since son and daughter were included, it was logical toinclude mother and father. Similarly, since son's son and son's daughter wereincluded, it was .logical to include true, grandfather and true grandmother. Itwas equally logical to include certain collaterals. Thus, were included fulland consanguine sisters, since full and consanguine brothers were heirs undercustomary law. For the same real Son, were included uterine brothers and sisters.To these newly created heirs, the Koranallots a specific share. These new heirs are commonly called"sharers". It is noteworthy that the fractional shares that arespecified by the Koran areonly six, namely 1/2, 1/4, 1/8,2/3, 1/3 and 1/5. The sharers are allotted their specified shares.Then whatever is left after allotting share 'to the sharers the rest-residuaryis divided among the customary heirs. These heirs are commonly called "residuary".This term came into vogue on the assumption that after giving specified sharesto the sharers, whatever is left is given to them. . Distribution of Assets among theSharers and Residuaries. Among theheirs the sharers are to be given their share first, and then the residue is tobe distributed among the residuaries. In the absence of the sharers, theresiduaries take the entire estate. In the absence of both the sharers and theresiduaries, the estate devolves on the distant kindreds. In their absence, theestate goes to the State. . . The peculiarity of the Muslim law of inheritance isthat although the sharers are class I heirs and the residuaries are class IIheirs, they together share the property. After shares have been allotted tosharers, the remaining property goes to the residuaries. Thus, if a Muslim diesleaving behind a mother, M, a son, 5, and a daughter's son, DS, then mother assharer will take 1/6 and S will take the remaining 5/6 as residuary. DS will betotally excluded from the inheritance, since he is a distant kindred. There is onlyone case when a distant kindred inherits along with a sharer, viz., when the sharer is ahusband or wife and there is neither any other sharer nor a residuary, then thedistant kindred inherits along with the husband or the wife. Thus, if a Muslimdies leaving behind a widow, W, and full sister's son FSS (who is distantkindred), then W will take 1/4 as sharer, and the residue of the estate,namely, the 3/4 will go to FSS. . Among the heirs of a class which one of them will take the estate, and inwhat portion, depends upon the circ*mstances of each case. The general rule ofpreference is that a nearer heir excludes a remoter one. Thus, if a Muslim diesleaving a son and a grandson (son's son or a son from a predeceased son), thenson alone will inherit, and the grandson will be excluded, though both areresiduaries. Similarly, if a Muslim dies leaving behind a father and a truegrandfather, then the father alone will inherit an4 the true grandfather willbe excluded, even though both are sharers. Among the residuaries thedescendants are preferred over ascendants and collaterals, and ascendants a~preferred over collaterals. Among the: collaterals, the descendants of a nearerancestor are preferred over the descendants of a remoter ancestor. When all theheirs claiming property are equally near, they share equally with this riderthat a male heir (generally) takes double the portion of a female heir. .When one is related to the deceasedthrough another, one does not inherit as long as that another is alive. Thus,father excludes both a brother and a sister. However, brothers and sisters are not excluded by the mother. The reasonis that when the mother is alive, she cannot. c1aim to inherit the entireestate. When there is no other heir, she takes part of the estate as a sharer,and the rest by return (see below, under the head "Doctrine .of Return). In the Hanafi scheme of inheritance, the followingfive heirs are always entitled, to a share in the estate; namely, husband~wife, child, father and mother. These heirs are called primary heirs. Next toU1em are "substitutes" : they are the substitutes of the last threeprimary heirs. These are child of a son. how low so ever, true grandfather, andtrue grandmother. Husband and Wife. If a Muslim male dies leaving behind a widow andchildren, then the widow takes 1/8, and the residue (i.e., 7/8) goes tochildren. If he dies leaving behind a widow and no child, then the widow, takes1/4. If he dies leaving behind more than one widow, then 1/8 (when there are children),or 1/4 (when there are no children), is distributed among them equally. If a Muslim female dies leaving behind her husbandand children, then the husband takes 3/4 as a sharer and the residue of 1/4goes to the children. If she dies leaving behind no child, then the husbandtakes 1/2 as a sharer. Thus, a Muslim female dies leaving behind her husband, Hand her father F. H will take 1/2 as a sharer and F will take the remaining 1/2as residuary. Fatherand True Grandfather The father is always an heir. Under no circ*mstances can he be excludedfrom inheritance. The true grandfather, being a substitute; is always excludedby the father. A nearer grandfather always excludes a remoter grandfather. ' , The position of father as an heir may be discussed under the followingcirc*mstances: (a) Where the deceased had left children, the' father takes 1/6share. Thus, when P dies leaving behind his father and a son. the father willtake 1/6 and the son, will take 5/6, (b) Where there are no children (or child)or agnatic descendants, the father and, in his default, the grandfather, takesas a residuary, (c) Where a Muslim dies leaving behind a mother and a father,the mother takes 1/3 as sharer, and the father takes 2/3 as residuary, (d) Incertain circ*mstances the father may take in dual capacity, as a 'sharer and asresiduary. Thus, where a Muslim dies leaving behind his father and a.,daughter, then the daughter takes 1/2 as a sharer, the father takes 1/6 assharer and' the residue of estate, i.e., 1/3, he takes as a residuary:Thus, the father will take 1/6+1/3=1/2. In this situation the position of thegrandfather (in the absence of the father) will be the same, since he is asubstitute for father. Thus, P, a Muslim dies leaving behind father F, a grandfather FF, amother, M, a grandmother MM, two daughters D and D1, and a daughter of apredeceased son, SD. FF will be excluded by F and MM will be excluded by M. F'fill take 1/6, since there are no children of the deceased. M will take 1/6,for the same reason. In the presence of daughters, SD will not take any share.The remaining 2/3 will go to D and D1, between them they will share equally, i.e.,1/3 each. Motherand True Grandmother .
Mother is never excluded from inheritance. 5he takes 1/3 where there areno children, and she takes 1/6 where there are children. The true grandmotherinherits in certain circ*mstances: (a) the maternal grandmother is excluded bymother or nearer true grandmother, paternal or maternal. (b) The paternal true grandmotheris excluded by the father, the mother and by a nearer true grandmother,paternal or maternal, as well as by a nearer true grandfather; Thus, P, a Muslim,.dies leaving behind his mother M, sons son, S and and a daughter, D. M willtake 1/6 as sharer, and the rest will go to D, S and S1 as residuaries: Dtaking 1/6,. S taking 2/6 and S1 taking 2/6.
(c) The mother takes one-sixth share if a Muslim diesleaving behind two sisters, or one brother and a sister (full, consanguine oruterine). In the presence of the father, sisters do not inherit. It is acurious aspect of Muslim law that an heir may be totally or partially excludedfrom inheritance by another, yet his presence may exclude another heirpartially or totally., Thus, P dies leaving behind his mother, M, father, F,two full sisters, PO and PD1. M will take 1/6, as on account of two sisters hershare is only 1/6. But FD and PD1 are excluded on account of the presence of F.F will take remaining 5/6.If the deceased dies leaving behind mother and onlyone sister or one brother and no child, then the mother takes 1/3 share. Thus,P dies leaving behind his mother, M, a sister PD and father F: Mother will take1/3; D will be excluded because of the father. F will take the remaining 2/3 (d)When a Muslim dies leaving behind husband/wife, mother and father, the rule isthat the mother will take only 1/3 of what is left after allotting the share tothe wife/husband. Thus, a Muslim dies leaving behind her father P, her husbandH, and her mother M. H, as sharer, will take 1/2 (the rule is that
whether there is no child or child of a son how lowsoever, he takes 1/2 share). The mother will take 1/3 of 1/2, i.e., 1/6. F will take as aresiduary heir the remaining 1/3.P dies leaving behind a widow, W, mother, M,and father, F. We will take 1/3 as a sharer. M will take 1/3 of remaining 3/4, i.e., 1/4. F as a residuarywill, take the remaining 1/2.P dies leaving behind his father F, father'smother, PM and mother’s mother’s mother MMM (mother's mother being dead). Here Fwill exclude PM. At the same time PM excludes MMM, since she is the nearer truegrandmother.
The result is that the entire estate goes to F who takes it as aresiduary heir. It should be noted that if there was no PM, then MMM would havetaken her share of 1/6 as true maternal grand mother, since F does not excludeher. This is also an illustration where an heir excludes another, and at thesame time he/she is himself totally excluded from inheritance.
Daughter and Son's Daughter how low soever.
The daughter takes a share in the estate ofthe deceased parent, when there is no son, when once she takes 1/2: when two ormore, all of together take 2/3. With sons she takes as a residuary. Whendaughter alone is the heir, she takes her half share and the other half to heras residuary. The son's daughter takes 1/2, when one, 2/3 when two or more, in'the absence of son, daughter's higher son~s son~s son, daughter or equal son'sson with equal son's son's son, she takes as residuary. The son's daughterstake per capita and not per stripes. Ihis means thatthe share of son's daughters is divided into as many parts as are son'sdaughter, irrespective of the number of sons. Under the Hanafi law the son'sdaughter inherits in her own right, and not as representative of the son Theson’s daughter is not excluded when there is only one daughter, but takes 1/6as a ,sharer. This principle applies to lower son's daughters also (such 1 asson's daughter how low soever); Thus, P dies leaving behind his father F, motherM, daughter, and four daughters of a predeceased son. SD, SD1, SD2,SD'. In thiscase F will take 1/6 as sharer, M will take 1/6 as sharer, D will take1/2 assharer and SD, SDl, sD2, sD', together will take 1/6, each taking 1/24.Or, Pdies leaving behind her father F, mother M, son's daughter SD and son’s son’s’daughter SSD. F will take 1/6, M will take 1/6, SD will take 1/2 and SSD willtake 1/6. . . .
Sisters.
Thesister is a sharer, one. sister takes 1/2 share; two or more take 2/3. (a) Butshe is not a primary heir. She, takes only in the absence of a son, son's son,how low soever, father and true grandfather. (b) With full brother (and incertain cases with daughter) she becomes a residuary. (c) If there are morethan one full sister, consanguine sister is excluded. But where there is onlyone sister, then consanguine sister takes 1/6. For example;
(i) P diesleaving behind a husband, H, .and a sister PD. H will take 1/2
and FD will take one-half.
(ii) Pdies leaving behind a full sister, FD, three consanguine sisters, CSl, CS2,CS3, one uterine sister
Uterine Brother and Uterine Sister.
Theuterine brother and uterine sister are not primary heirs. They inherit only incertain circ*mstances. (a) The uterine brother and uterine sister are excludedby a child, son of a child how low soever, father, true grandfather. (b) A fullbrother or a full sister does not exclude a uterine brother or a uterine sister.
. (c) Whenever the uterine brother and sister inherit theytake equal share; the rule of male taking double portion does not apply tothem. (d), Uterine brother and uterine sister take 1/6 share. Where there aremore than one uterine brother or uterine sister they together take 1/3, andbetween them share it equally. We may take two examples:
. (1) P dies leaving behind two full sisters and twouterine sisters. The hill sisterstogether will take 2/3, each taking 1/3 and uterine sisters together will
take 1/3 each taking 1/6.
(ii) There is one interesting case, the Himariyya, where .a Muslimfemale , died leaving behind her husband, H, mother, M, two uterine brothers,UB, UBI and one full brother, PS, H took 1/2, M took 1/6, UB and UBI took 1/3.In this manner we find that the entire estate was exhausted, and nothing wasleft for FS, the. full brother. In this case full brother would have taken as aresiduary, had some residue been left.
Residuaries: Distribution of Assets
.
Wewould proceed to give a few more examples where the residuaries predominate. .
Allresiduaries are related to the deceased through males. Residuaries may beclassified as: (a) descendants of the deceased, (b) ascendants of the deceased,and (c) collaterals of the deceased. The collaterals may be further dividedinto: (i) descendants of the deceased's father, and (ii) descendants of thedeceased's father's father how high soever. .
It should be noted that Six' sharers. inheritas residuaries in certain circ*mstances. These are: (a) the father, (b) truegrandfather how high soever,
(c) daughter, (d) son'sdaughter, (e) full sister and (f) consanguine sister. Of these, the father andthe' true grandfather inherit in certain circ*mstances both as sharers andresiduaries. No other heir can inherit in double capacity. The other four whoare all females, inherit either as sharers or as residuaries. They succeed asresiduaries when they co-exist with male heirs of equal proximity. Forinstance, the daughter inherits as a sharer when there is no son. When there isa son, she inherits as a residuary. The same applies to the other females.These are the only four females 'who inherit as residuaries, and they inheritin that capacity along with the males of equal proximity. Except the son'sdaughter how low soever, no one of these females can, as residuary, succeed witha male of lower grade. For instance, daughter can neither succeed as residuarywith son's son nor can sister succeed with brother's son. But son's daughterinherits as residuary not only with son's son's son how low soever. Forexample, when a Muslim dies leaving behind two daughters, D and D1, a son'sson's son, SSS, son's daughter, SO, and son's son's daughter SSD, then D and D1together will take 2/3 as sharers, SSS 1/6 as residuary, SD 1/12 as residuary,SSO 1/12 as
Residuary. We may take two more illustrations. .
(i)P .dies leaving behind daughter, D, son's daughter, SD, son's son's daughter,SSD, and son's son's son, SSS. 0 will take 1/2 as sharer, SD will take 1/6 assharer, SSS and SSD will take the remaining as residuaries, SSD taking 1/9 and SSStaking 2/9. .', .
(ii)P, a Muslim, dies leaving behind two daughters, D and D1, a son's daughter, SD,and son's son's son, SSS. D and D1 together will take 2/3, as sharer, and theremaining will go to SD, SSS as residuaries, SSS taking 2/3 and SD taking 1/9(in accordance with the rule that male takes double portion).
Doctrines of Aul (increases)and Radd (return)
In asystem of law which assigns fixed shares to heirs, two anomalous situations arelikely to arise: The sum of sharesallotted to various heirs according to their entitlement, (i) may be in accessof the unity, or (ii) may be less than the unity. The former situation issolved by' the application.of the doctrine of aul orincrease, and the .latter by the application of the doctrine of radd or return.
Doctrineof aul.or increase.-When the sumtotal of the shares' allotted to various heirs in accordance with theirentitlement -exceeds the unity, then the doctrine of aul lays down that the share of each heir should beproportionately reduced. This is done by reducing the fractional shares to be commondenominator. Since this is done by increasing the denominator, the doctrine hasbeen given the name of increase (aul) though in fact the shares areproportionately reduced. We may exp1ain the doctrine by an example: ".
P dies leaving behind her h1.1sbarid, H, two full sisters,FD and FDl, and
Mother M They will beallotted the shares as under:
. H..:..1/2or 3/6
FD & FD1~...2/3 or 4/6.
M..:.. l/6. .
Theproportionate reduction of shares is achieved by increasing thedenominator from 6 to 8. Thus, the shares of the' respective shares will be: H will take 3/8, FD &: FD1 4/8and M 1/8.
Wemay take another example: P dies leaving husband, H, full sister, FD, twouterine sisters, MD and MDI, two uterine brothers, MS and MSI and mother, M.All these heirs are sharers. In accordance with their entitlement, their shareswill come to: M 1/6, H 1/2, FD 1/9, MD,
Doctrine of radd or return.
-When there is surplusleft after allotting the shares to the sharers in accordance with theirentitlement, and there are no residuaries to take the surplus, then thedoctrine of return laysdown that the surplus isto be distributed among the sharers in proportion to their respective shares.This doctrine, recognizes one exception, viz., neither the husband nor the wifeis entitled to the return so long as' there is alive another sharer or a distant kindred. But in
Examples. ' '
(i) P dies leaving behindhis mother M, and his daughter D. M takes 1/6 and D takes 1/2.There remains 'a surplus of1/3. Since there is no residuary, 1/3 will return to D andM. M's share will be increased to 1/4and D's share to 3/4'.
The formula in the case ofreturn is to reduce the common denominator.
(ii) P dies leaving behind his wife, W, and none else.' Wwill take 1/4 as
Sharer and 3/4 by return. When, there is noother heir, the doctrine of return applies to the spouses.
Distant Kindred.
In the absence of the sharers and theresiduaries, the estate, devolves on the distant kindred. There is only onecase in which the distant kindred inherits along with a sharer. When the onlysurviving Sharer is a husband or awife and there is no residuary then the husband or wife takes his orher share, and the rest of theestate goes to the distant kindred.
In the classes distantkindred are all those blood relations ofthe deceased who have not found a place either among the sharers or residuaries, there are: (a) femaleagnates, and (b) cognates, both males and females. These two classes of relationsconstitute the distant kindred.
For the purpose' of distribution of assets among them, the,better classification of distantkindred would be into: (i) descendents, (ii) ascendants, and (iii) collaterals.The classification of the distant kindred may be worked out thus:
I. Descendants of the deceased. Under this category will fall:
(i)daughter's children and their descendants how lowso ever
(ii) son's daughter's 'children, how lowsoever' and their descendants without any limit (ad infinitum).
II. Ascendants of the deceased. Under thecategory will fall:
(i) False grandfatherhow high soever, and
(ii) False grandmother how high soever.
. Collaterals. Thecollaterals may be further divided as under:
(a) Descendants of parents.Under this head will fall:
(i) full brother'sdaughters, and their descendants,
(ii) consanguine brother's daughter, and their descendants,
(iii) uterine brother's children and their descendants,
(iv) daughters offull brother's sons how low soever, and their
. descendants,
(v) daughters of consanguinebrother's sons how low soever,
and their .descendants, and
(vi) children of sisters(full consanguine and uterine how
low so ever and their descendants).
(b) Descendants of immediate grandparents(true or false). Under
this head will fall :
(i) full paternaluncle's daughters and their ,descendants,
(ii) Consanguine paternal uncle's daughters and their
descendants,
(Ill) uterine paternal uncles and their children and their
descendants,
(iv) daughters offull paternal uncle's sons how low soever
and. their descendants,
(v) daughters of consanguinepaternal uncle's sons how low
so ever and their descendants,
(vi) paternal aunts (full, consanguine or uterine) andtheir
children and their descendants,
(vii) Maternal uncles and aunts and their children and their
descendants,’
(c) The descendants ofremoter grandparents how high soever (true or false), in the sameorder and like manner as the descendants, of all, immediate grandparents.
The number of collaterals is limitless,all the descendants of allthe ascendants, without any limit as to degrees, are included.
Distribution ofAssets among the Distant Kindred
The distant kindred succeed to the estate of the deceased only in theabsence of the sharersand residuaries with one exception, viz., when husband or wife isthe sole heir, then the distant kindred take the residue. Among the distantkindred, the rules of distributionof assets and of exclusion may be statedthus:
(1)When among the claimants there are descendants, ascendants and collaterals, thedescendant distant kindreds are preferred over ascendant distant kindred andcollateral distant kindreds. When the claimant distant kindreds are ascendantsand collatera1s, then ascendant are preferred.
(2) When all claimants are descendants,then the one who has fewer degrees ofdescent will be preferred. "
(b) If all of them have equal degrees ofdescent, then the children of
sharers and residuariesare preferred over the children of distant kindred.
(c) The order of preference among the descendants is as under:
(i) daughter's children,
(ii) son's daughter's children,
(Ill) daughter's grandchildren,
(iv) son's son's daughter's children,
(v) daughter's great grandchildren and son's grandchildren,and
(vi) the other descendants of the deceased in the likeorder.
(d)If the claimants have the degrees of descent and the sexes of intermediateancestors do not differ, then. all the claimants take per capita, male takingdouble portion. Thus, if P dies leaving behind daughter's daughter, DD, anddaughter's son, DS, DD will take 1/3 and DS will take 2/3.
(e) If the intermediate ancestors differ in their sexes, thenthe following
rules apply:
(i) Where there are two claimants, each claiming through hisown line of ancestors; the rule requires to stop at the stage of descent, wheresexes differ and assign the. share at this stage assigning double portion tomale and one portion to female ancestor. The shares so assigned will descent tothe claimants, irrespective of their sexes.
(ii)Where there are three or more claimants and each is claiming through adifferent line of ancestors, then the rule lays down to stop at the line wheresexes differ and to allot shares there, ~ale getting double portion and femalegetting one portion. But the shares so allotted to ancestors do not descend onthe claimants. But the shares of all male ancestors on one side' and of femaleancestors on the other are pooled together, and then divided among the descendants,the male getting double portion and female getting one portion. For example, P. dies leaving behind adaughter's son's daughter, DSD, a daughter's daughter's daughter, DDD, and adaughter's daughter's son, DDS, Since the sex of the ancestors differ at thesecond line of descent, the shares are to be. allotted here, male gettingdouble portion and female getting one portion.
DSwill get 1/2, DD will get 1/4 and DD1 will get 1/4. Since there are twofemales, their shares will be pooled together which will come to 1/2. Since inthe line DS there is only one heir, his 1/2 will go to DSD. DD and DDI'S 1/2will go to DDS and DDD, the male taking the double portion. This will mean thatDDS will take 1/3 and DDD will take 1/6. This is the rule followed in
(1ll) Wherethere are two or more claimants claiming through the' same intermediate ancestor,the rule is to count each of such ancestors if male, as many males as there areclaimants claiming through him and, .if female, as many females as there areclaimants claiming through her, irrespective of the sexes of the claimants.When an intestate leaves descendants in the fourth or remoter generations, thisprocess is to be applied as often as there may be occasions to group of thesexes of intermediate ancestors.
Ascendants
Onthe failure of descendant distant kindreds, the property devolves on theascendant distant kindreds. a) Among the ascendant distant kindreds, thenearest is mother's father. If he exists, he will take the entire estate. Onhis failure, estate will devolve on such false grandfather or grandmother whotrace their ascend through a sharer, viz., father's mother'sfather andmother's mother's father. If both co-exist, the FMF being on the paternal sidewill take double portion, while MMF being on the maternal side will take oneportion. This means that FMF will take 2/3 and MMF will take 1/3.
(c) On thefailure of father's mother's father and mother's mother's father the propertywill devolve on the false ancestors in the third degree, namely, mother’sfather's father and ,mother's ,father's mother. Since both are on maternal sideand the sex of the intermediate ancestor is also the same, MF being male willtake 2/3 and MFM being female will take 1/3.
The rules of preference among theascendant distant kindred may be stated
thus:
(i) the nearer in degree excludesthe remoter,
(ii) among the claimants of the sameproximity, those related to the intestate through sharers are preferred tothose related through distant kindred,
and .
(ii) among the claimants of both thepaternal 'side and materna1side of equal degrees, the claimants on the paternalside will get double the portion over the claimants on the maternal side, i.e., 2/3 : 1/3. The next stepis to divide the portion assigned to paternal side among the ancestors of thefather and the portion assigned to maternal side among .the' ancestors of themother, in the same manner as among thedescendants.
Collaterals ,
Earlier we have grouped collateralsunder three categories. In the first come nephews and nieces and theirdescendants. In the second category fall Uncles and aunts and theirdescendants. In the third category are descendants of the remoterancestors" the great grandparents, how high soever. The, collateralscomprise a vast and complicated group of heirs. In actual practice they succeedseldom. Among the collatera1s these are the following rules of exclusion: (i) Aclaimant nearer in degree excludes the remoter; and
(ii) Among theclaimants of equal proximity, the children of residuaries are preferred to.those of distant kindred.
(ill) Among theclaimants of the same degree and not excluded by virtue of Rule (ii)(a) thedescendants of full brother exclude those of consanguine brother and sister;(b) but the descendants of full sisters do not exclude the descendants ofconsanguine brother and sister; (c) the descendants of the uterine brother andsister do not exclude the descendants. of consanguine brother and sister (afterallotting 'shares to the descendants of full sister and to the descendants ofthe uterine sister and brother.' the residue, If any, goes to the descendants ofconsanguine brother and sister); and (d) the descendants of uterine brother andsister are not excluded, by the descendants of, either the full brothers andsisters or by consanguine brother and sister, they inherit along them.
STATE: ASAN HEIR BY ESCHEAT.
In modern
CONCLUSION.
The divinejustness and equitability of the Islamic laws of inheritance have beencorrectly appreciated by many non-Muslim scholars such as Professor AlmaricRumsey (1825-1899) of King's College, London, the author of many works on thesubject of the Muslim law of inheritance and a barrister-at-law, who statedthat the Muslim law of inheritance, "comprises beyond question the mostrefined and elaborate system of rules for the devolution of property that isknown to the civilized world.1"
To understandthe Islamic laws of inheritance as a whole it is necessary to consider thesystem of inheritance that operated within the
As we shallsee the Quran does not expressly state the share of the male agnate relativesas such, although it does enact that the share of the male is twice that of afemale. The Sunni jurists take the view that the intention of the Quranicinjunctions was not to completely replace the old customary agnatic systementirely but merely to modify it with the objective of improving the positionof female relatives. The Sunni Islamic law of inheritance is therefore, anamalgamation of the Quranic law superimposed upon the old customary law to forma complete and cohesive system.
BIBLIOGRAPHY.
Family Law: Hindus, Muslims, Christians,Parsis and Jews ,Paras Diwan and Peeyushi Diwan. Reprint.
Outlines of Muhammadan Law, Asaf A.A. Fyzee, Oxford University Press ,Mar 2008 , 1sted.
TheHanafi Law of Intestate Succession: A Simplified Approach, by Lucy Carroll ©1983 Cambridge University Pre "Loved reading this piece by sreekumar.c.nair?
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