Islamic Law of Inheritance – Ilm-ul-Faraiz

Introduction

Inheritance is one of the modes of acquiring property. The law prescribes the procedure for the
devolution of property amongst the heirs. In pre-Islamic Arabia, the customary rules governed
the practice of Inheritance which was based on the principle of comradeship in arms. This
customary practice used to exclude females and minors and instead favoured parental male
descent, adoption and sworn alliance or clientage. After the dawn of Islam, this discriminatory
customary practice of pagan Arabs was reformed. This marked a significant departure from the
previous systems. Females for the first time in history were recognized as competent to inherit.
Besides them widow, widower, parents and ascendants were given the right to inherit in
presence of male agnatic descendants.

General Principles governing Inheritance

According to Islamic Law of Inheritance, before an estate devolves amongst the heirs, certain
fundamental requirements are to be complied with:

a) Funeral expenses of the deceased are to be taken care of.

b) Debts, if any, of the deceased are to be paid
c) Bequests, if any, made by the deceased are to be enforced.

After fulfilling all outstanding liabilities as stated above, the remaining part of the property is
distributed amongst the legal heirs. In pre-Islamic Arabia, a man had an unqualified power of
disposing of his property by will. Islam gradually reformed the system by laying down specific
rules of distribution of property. The right of will was recognized but qualified. A Muslim was
allowed to make a will subject to the following qualifications:

a) A will cannot be made in favour of a would be heir;

b) It cannot exceed more than one-third of the total property.
In case, a will is made in favour of a would be heir, or if it exceeds, more than one- third, the
consent of future heirs becomes necessary.

Amongst Shia’s, the rule is somewhat different and a testator can make a will in favour of a
legal heir so long it does not exceed one- third of his total estate. Such a legacy is valid without
the consent of the other heirs, but where it exceeds one- third it is not valid without the
consent of all the heirs. Such consent may be given either before or after the death of testator.
Under Sunni law ratification must always be after the death, an assent before death being of no
effect.

Competence to inherit

Every heir is entitled to inherit. The distribution is effected amongst the blood relations and
marital relations. The claimants must establish the cause of inheritance and there should be no
impediment to inheritance, which is based upon near relationship, and there should be no
impediment to inheritance e.g., the existence of a preferable heir or otherwise.

Rule of Exclusion

There are two kinds of exclusion viz; perfect or absolute exclusion and imperfect or partial
exclusion.

Perfect or absolute exclusion

There are two classes of heirs, one amongst them is not excluded at all and the other class is
such that under certain circumstances they inherit and under certain circumstances they are
excluded. The heirs which are not excluded at all are six in number: Father, Mother, Widow,
Widower, daughter and Son. These are called primary heirs. All the other heirs, each of whom
may be excluded by some one else. For example brother is an heir he may be excluded by the
son or by the father. Brother can inherit only if the deceased has left no son or father.
IllustrationsI) ‘A’ dies leaving behind: father, daughter, widow and brother. Brother cannot
inherit. Father excludes brother.

II) ‘A’ dies leaving behind: daughter, widow and brother. Brother along with daughter and
widow is entitled to inherit.

III) ‘A” dies leaving behind: Widow, Son and brother. Brother cannot inherit. Son excludes
brother.

This rule is based on the principle that nearer excludes the more remote. The perfect exclusion
also applies to the cases where although a person is related to the deceased and is otherwise
entitled to inherit, there is some legal cause which excludes him from inheriting his share in the
property. Examples are: difference of religion, Homicide, illegitimacy, slavery.

Difference of religion

Under Islamic Law a non-Muslim is not entitled to inherit from a Muslim. If a Muslim by birth
becomes an apostate he cannot inherit. In India, the caste Disabilities Removal Act, 1850 has
removed this impediment and apostasy as such does not affect the right of inheritance.

Homicide

A claimant who causes death intentionally or unintentionally is not entitled to inherit from the
deceased under Hanafi Law. Homicide bars the murderer absolutely from inheriting any
property of the murdered irrespective of the close relationship between the two. Under Shia
Law only intentional killing is a bar to inheritance.

Illegitimacy

An illegitimate child cannot inherit property from a father’s side but can inherit from mother’s
side only. Under Shia law an illegitimate child can neither inherit from the father nor from the
mother.

Slavery
Previously slaves were not entitled to inherit. However, this rule has become almost obsolete
since the practice of slavery itself by and large stands extinguished.

Imperfect or Partial Exclusion

Imperfect or partial exclusion is an exclusion from one share and an admission to another. For
Example a daughter is a Quranic heir, but by the co-existence of a son, she may be excluded as
a Quranic heir and admitted as residuary.

Illustration

I)’A’ dies leaving behind widow , father, son and daughter. Widow and father will take their
respective shares as Quranic heirs. Daughter who is a Quranic heir will be excluded as a Quranic
heir by the co-existence of son and will be admitted as an Agnatic heir.

II) ‘A’ dies leaving behind mother, widow, brother and sister. Mother and widow will take their
respective shares as Quranic heirs. Sister who is a Quranic heir will be excluded as a Quranic
heir by the co-existence of brother and will be admitted as an Agnatic heir.

Females as heirs

The women in pre-Islamic Arabia were not entitled to inherit and the reason for their exclusion
was that they were treated as second class citizens, because they did not used to take part in
war. Islam recognized their right of inheritance and under Islamic law they inherit in different
capacities. She inherits as Mother, widow, daughter, sister, grand-daughter, grandmother, aunt
and female collaterals.

Doctrine of representation

The doctrine of representation which is not recognized in India means that a person cannot
succeed as a representative of someone who has already predeceased the deceased. For
Example ‘A’ dies leaving behind son ‘B’ and predeceased son’s son ‘C’. Only the Son ‘B’ will
inherit. ‘C’ being the son of predeceased son cannot represent his father and, therefore, is
excluded from inheritance. The heir is to be ascertained at the time of the death of the
deceased, and a person can’t succeed as representative of someone who had already
predeceased the deceased.

Nature of property

Islamic law of inheritance makes no distinction between movable or immovable property, joint
or separate property, realty or personalty.

The heirs in general

According to Hanafi law jurists, there are three principal classes of heirs and four classes of
subsidiary heirs.

Principal Classes

A number of relations of the deceased are entitled to inherit. The principal classes include
Quranic heirs (Sharers); Agnatic heirs (residuaries); Uterine heirs (Distant kindred).

Quranic Heirs (Sharers)

The Quranic heirs constitute class I heirs and are twelve in number. They are also called as
sharers. The Quran has fixed their respective shares. They take their respective share in certain
order of preference. Quranic heirs include: Widow, widower, Father, Father’s father, mother,
grandmother (mother’s mother, father’s mother), daughter, son’s daughter; full sister;
consanguine sister, uterine brother and uterine sister. Five Quranic heirs always inherit. They
include: widow, widower, father, mother and daughter. Others may or may not inherit and
their right of inheritance is determined by the presence or absence of heirs who are primary
heirs especially father and son.

Agnatic Heirs (Residuaries)

Agnatic heirs constitute Class II heirs and by relationship are three:

1) Agnates in their own rights

2) Agnates in another’s rights
3) Agnates together with another

Uterine Heir’s (Distant kindred)

The third principal class consists of uterine heirs or distant kindred. Distant kindred are of four
kinds:

1) Descendants of the deceased;

2) His ascendants;
3) Descendants of his parents
4) Descendants of his paternal and maternal grandfathers and grandmothers

Subsidiary Heirs

In case none of the heirs mentioned above exist, the property of the deceased will devolve to
the subsidiary heirs amongst whom each class excludes the next.

Succession by contract

Succession by contract arises on the basis of relationship technically called wala. Literally wala
means friendship and assistance but legally it signifies that assistance which entitles a person to
inherit from the deceased. Basically it is a fictitious relationship which arises in two situations:
by emancipation and by friendship. If a master emancipates his slave, the master can inherit
from the slave but not vice-versa. The second by clientage which implies a responsibility to pay
fine to which the deceased may be liable and in consideration, thereof ,the deceased has made
a declaration that he shall inherit from him. This rule has little applicability in India as the
consideration cannot be recognized.
Heir by acknowledgment

In order of preference, next comes the heir by acknowledgment. The acknowledged kinsman is
a person of unknown descent who has been acknowledged by the deceased not through
himself but by another. This acknowledged kinsman-ship does not extend to a son. For
example, if two persons of unknown parentage call themselves brothers, and one of them dies
without any known legal heir, the other person would be entitled to inherit deceased’s
property. If a will exceeding one third has been made by the acknowledgor, the acknowlegee’s
consent is necessary to validate it.

Universal legatee

In absence of everyone as stated above, a person is free to make a will and bequeath his entire
estate to any person, known as universal legatee. In absence of legal heirs, the testators power
of bequeathing only one third of the estate is not qualified.

Escheat

In absence of all the heirs mentioned above the estate devolves upon the Bait-ul-mal, the
public treasury in an Islamic country. In India it would escheat to the state. Under the Shia law,
there is no escheat to Bait-ul-mal, and the property is preferred to be liquidated amongst the
poor.

Doctrine of ‘awl’ or Increase

Sometimes it is found that the sum total of fractional shares to which some sharers are entitled
is more than unity. In such a situation a proportionate abatement is made in all the shares by
increasing the common divisor. By awl the fractional shares are proportionately reduced. The
following illustration will explain the doctrine of awl:

‘A’ dies leaving behind widow, mother and a sister. The heirs are entitled to the following
shares:
Widow= ¼ =3/12 by awl reduced to 3/13

Mother=1/3 =4/12 by awl reduced to4/13

Sister=1/2 =6/12 by awl reduced to 6/13

13/12 13/13=1

Doctrine of radd or return

When the sum total of fractions is less than unity and there are no residuaries to take the
residue, the residue returns to the Quranic heirs (except in case of widow or widower) in
proportion to their respective shares. This is called radd or return. The sharers who are entitled
to return are seven females; mother, grandmother, daughter, son’s daughter, full sister,
consanguine sister, uterine sister and only one male i.e., uterinr brother.

In India when the deceased leaves no other surviving heir except a spouse, the surviving spouse
takes by return. The following illustrations may elucidate the doctrine of radd:

1.‘A’ dies leaving behind Widow and a sister:

Widow =1/4

Sister =1/2 by return =3/4 (1/2 as sharer and 1/4 by return)

2.’A’ dies leaving behind mother , daughter and uterine sister:

Mother =1/6 =1/6 increased to 1/5

Daughter =1/2 =3/6 increased to 3/5

Uterine sister =1/6 =1/6 increased to 1/5

=5/6 = 5/5 =1
Conclusion

Islam reformed the early customary rules of inheritance; however it did not abandon all
customary practices. The Islamic law of inheritance rests basically upon the recognition of two
distinct categories of legal heirs-the male agnates or asaba , the heirs of the tribal customary
law and the new Quranic heirs. This system of inheritance eliminated traditionally eligible
categories and included new classes of heirs. A good number of heirs were accorded certain
rights which sometimes resulted in the division of the property into smaller shares. The Islamic
law of inheritance may be summarized as under:

1 The widower and widow were made an heir.

2 Females and cognates were recognized as competent to inherit.

3 Parents and ascendants were given a right to inherit in presence of male agnatic descendants.

4 No will can be made in favour of any of heirs .

5 Bequest to a stranger is allowed only to the extent of one-third of the estate.

6 An exception to the limit of one-third and in favour of would be heir operates if the would be
heirs approve.

7 Adoption was excluded from the ambit of inheritance.

8 Rights of inheritance arise only on the death of a certain person.

9 Generally the share of the female is half of the share of her male counterpart.

Islamic Law of Inheritance Part II

Quranic Heirs and their shares
Introduction
 In continuation of our earlier lecture on Islamic law of inheritance let us now
proceed to the detailed discussion of Quranic heirs. They are also called sharers. Their
respective shares have been fixed by the Quran itself. They take their respective shares in
order of preference. Five Quranic heirs ; widow, widower, father, mother and daughter
always inherit. The other Quranic heirs may or may not inherit and their right of
inheritance is determined by the presence or absence of father and son who are primary
heirs. Although the son is not a Quranic heir but being a primary heir he cannot be
excluded but can exclude other heirs.

Quranic Heirs (dhawal-furud)

The Quranic heirs constitute Class I heirs and are twelve in number: widower;
widow, father; true grandfather (father’s father how high so ever); mother; grandmother
(maternal and paternal how high so ever); daughter; son’s daughter; full sister;
consanguine sister; uterine sister; and uterine brother. Only four are male and the rest are
female subclasses.

Three heirs viz; grandfather, grandmother and granddaughter were not in fact
specifically mentioned by the Quran as heirs; but Sunni jurists added them to the list of
Quranic heirs by analogy.

Widower and widow (Husband and wife )

The surviving spouse always inherits and is never excluded. The husband or the
wife is the only heir by affinity who is made a primary heir by the Quran. In pre-Islamic
times they were entirely excluded. A man in his capacity as a surviving spouse was not
entitled to any share from the property of his deceased wife. A woman on the other hand
as a surviving spouse was not only disentitled to any share from the property of her
deceased husband but was a part of inherited goods, a matter between men, the men of the
husband’s clan or her own relations.
The widower is entitled to one-fourth (the minimum) or one half (the maximum)
share from the net estate of the deceased wife. He gets one half if there are no children or
no child of son how low so ever.
Illustrations
1.‘A’ dies leaving behind husband, father and son. The Widower will get one-fourth.
2. ‘A’ dies leaving behind husband, mother and Sister. The Widower will get one half as
the deceased ‘A’ leaves behind no child.
While on the other hand the widow is entitled to one-eighth (the minimum) or one-fourth
(the maximum) share from the net estate of the deceased husband. The widow is entitled
to one-eighth if there are children. She is entitled to one-fourth if there are no children or
the son or son’s son how low so ever.
Illustration
1.‘A’ dies leaving behind widow, son and mother. The widow will get one- eighth.
2. ‘A’ dies leaving behind widow, mother and brother. The widow will get one-fourth as
the deceased leaves behind no child.
Islam allows limited Polygyny it sometimes happens that the deceased leaves more than
one widow; in such situation the share of more than one (not exceeding four) is precisely
the same, viz., one-eighth or one-fourth to be divided equally between them.
Illustrations
1.‘A’ dies leaving behind son, daughter and two widows. The two widows will get one-
eighth jointly to be distributed equally amongst them.
2. ‘A’ dies leaving behind father, brother and two widows. The two widows will get one-
fourth jointly to be distributed equally amongst them.
Widower and widow are the only heirs by affinity and as Quranic heirs their respective
shares are fixed. They are not entitled to Radd (return).However, in India the position is
different. If the sole surviving heir is the widow or widower she or he takes the residue
after taking the Quranic share.
Illustrations 1. ‘A’ dies leaving behind Widow, and daughter. All sharers are Quranic
heirs. The widow will get 1/8, and daughter 1/2 of 7/8=7/16+7/16 by return
7/16+7/16=14/16=7/8
2. ‘A’dies leaving behind widow, the sole surviving heir. The widow is entitled to 1/4.
As a general rule the residue would escheat to the state. In India, however, widow is
entitled to the whole estate of her deceased husband .

Father and Mother

The father and the mother always inherit and can never be excluded. The share of a
father as a Quranic heir is the same as that of the mother, viz., one-sixth. This, however,
is not fixed and may change. The share of the mother changes when the deceased leaves:

(1) no child;
(2) no child of son how low so ever;
(3) one brother or sister;
(4) husband or wife co-exists with father.

In cases 1-3 her share is extended to one-third and in case 4 th, one-third of the residue
after deducting husband’s or wife’s share.
Illustrations
1.‘A’ dies leaving behind mother, son and widow. The mother as a Quranic heir will get
1/6
2. ‘ A’ dies leaving behind mother and widow. The mother’s share will be increased to
1/3
3. ‘A’ dies leaving behind mother, widow and two brothers. The mother’s share is 1/6

The father inherits in two different categories at the same time viz., Quranic heir
and agnatic heir or simply as an agnatic heir. The following cases will explain the
different categories of the father:
1.Father with children takes one-sixth as a Quranic heir.
2.Father with daughter takes as Quranic heir as well as agnatic heir viz; one-sixth as
Quranic heir and one-third as agnatic heir.
3.In case there are no children or agnatic descendents the father inherits as an
agnatic heir.
Illustrations
1. ‘A’ dies leaving behind father, two sons and two daughters. The father will get
1/6 as Quranic heir.
2. ‘A’dies leaving behind father and daughter. The father will take 1/2 as agnatic
heir .
The surviving heirs are father and daughter. The daughter will take 1/2 as
Quranic heir and the father being a Quranic heir in absence of son will take as
agnatic heir.
3. ‘A’ dies leaving behind father, mother and grandfather. The grandfather will
be excluded by father. The father will take as agnatic heir.
The mother will get 1/3 and father 2/3 as agnatic heir.
Grandfather (Father’s father)

The grandfather inherits only in absence of the father of the deceased. Like the
father he inherits in different capacities:
1 As a Quranic heir, if there is a son or son’s son how low so ever and no father, he takes
one-sixth.
2 As an agnatic heir, if there are no children or agnatic descendents.
3 In dual capacity if there is a daughter or agnatic granddaughter—taking one-sixth as
Quranic heir and residue as an agnatic heir.
Illustrations
1. ‘ A’ dies leaving behind father’s father , father, son and widow. The father will
exclude father’s father and, therefore, will not be entitled to any share.
2. ‘A’ dies leaving behind father’s father, son, mother and daughter. The father’s
father will take 1/6 .
3. ‘A’ dies leaving behind father’s father, mother and widow. The father’s father
being a Quranic heir in absence of children will take as agnatic heir.
The widow will get 1/4, the mother will get 1/3 of 3/4 =1/4.
Father’s father will get 1/2.
4. ‘A’ dies leaving behind Father’s father, and daughter. The father’s father in
absence of son will take as agnatic heir.
The daughter as Quranic heir will get 1/2
Father’s father will get 1/2

Grandmother

The maternal grandmother, how high so ever, inherits only in the absence of the
mother, nearer maternal or paternal grandmother. Paternal grandmother how high so ever
inherits only in the absence of mother, nearer maternal or paternal grandmother, father,
nearer true grand-father. The share of a grandmother whether maternal or paternal is one-
sixth. Two or more grandmothers of equal degree divide one-sixth equally.
Illustrations
1.‘A’ dies leaving behind mother, mother’s mother and son. The mother will exclude
mother’s mother and, therefore, will not be entitled to any share.
2. ‘A’ dies leaving behind mother’s mother, daughter and son. The mother’s mother will
get 1/6.
3. ‘A’ dies leaving behind father’s mother, mother and son. The father’s mother will be
excluded by mother and, therefore, will not be entitled to any share.
4. ‘A’ dies leaving behind mother’s mother, father, son and daughter. The mother’s
mother will get 1/6.
5. ‘A’ dies leaving behind father’s mother, father, son and two daughters. The father’s
mother will be excluded by father and, therefore will not be entitled to any share.

Daughter

In pre-Islamic Arabia the position of young girls was worse than married women.
Not only were they deprived of their inheritance, but they were also the object of sexual
abuse and mistreatment. The Quran reversed this arbitrary practice and made daughters
legal heirs. They inherit in different capacities. In the absence of any son of the deceased,
daughters always inherit as Quranic heirs. One daughter is entitled to one-half and two or
more daughters to two-thirds which they share equally. If a daughter (or daughters) co-
exists with a son (or sons) she inherits as an agnatic heir.
Illustrations
1.‘A’ dies leaving behind widow, father and daughter. The daughter will inherit as
Quranic heir.
The widow will get 1/8, daughter 1/2 of 7/8 =7/16.The father will get 7/16 as agnatic heir.
2. ‘A’ dies leaving behind father, and two daughters. The daughters will inherit as
Quranic heirs.
Two daughters will get 2/3 jointly and father will get residue as agnatic heir.
Each daughter will get 1/3 and father 1/3.
3.‘A’ dies leaving behind widow, son and daughters. The widow will get 1/8.The
daughter in presence of son will take as agnatic heirs. The residue will be divided into
three equal shares. The son will get two shares and daughter will get one share.
The son will get 7/12 and daughter 7/24.
4.‘A’ dies leaving behind two sons and two daughters. The whole estate will be divided
into six parts. The sons will get two parts each and daughters will get one part each.
Sons 1/3 each, Daughters 1/6 each.

Son’s daughter

A son’s daughter is not always entitled to a share of inheritance. As a

Quranic heir she is entitled to one-half and in a case two or more they are entitled to
two-third which they share equally. She is entirely excluded by son, more than one
daughter, higher son’s son, more than one higher son’s daughter. In presence of a
grandson she generally takes the position of daughter and is converted into an
agnate by him.
Illustrations
1. ‘A’ dies leaving behind widow, son’s daughter and father. The widow will
get 1/8, Son’s daughter 1/2 of 7/8=7/16 and father 7/16 as agnatic heir.
2. ‘A’ dies leaving behind two son’s daughters and father. The two son’s
daughters will get 2/3 jointly (1/3 each ) and father 1/3 as agnatic heir.
3. ‘A’ dies leaving behind widow, son and son’s daughter. The son’s daughter
will be excluded by son and, therefore, will not be entitled to any share.
4. ‘A’ dies leaving behind two daughters, son’s daughter and father. The son’s
daughter will get excluded by two daughters and, therefore, will not be
entitled to any share.
5. ‘A’ dies leaving behind daughter, son’s daughter and father. The daughter
will get 1/2, Son’s daughter 1/6 and father residue as agnatic heir.
 6. ‘A’ dies leaving behind son’s daughter and son’s son. The son’s daughter in
presence of son’s son will take as agnatic heir. She would take share equal to
half of that is taken by the son’s son.

Full Sister

A full sister is not always entitled to a share by inheritance. She is absolutely

excluded by son, son’s son how low so ever, father . According to Imam Abu Hanifa she
is also excluded by true grandfather. As a Quranic heir she is entitled to one-half and if
two or more they are entitled to two-third which they share equally. A full brother’s
existence converts her into an agnatic heir.
Illustrations
1. ‘A’ dies leaving behind son and sister. The sister will be excluded by the son and the
son will get the entire property.
2. ‘A’ dies leaving behind father and sister. The sister will be excluded by the father and
the father will get the entire property.
3. ‘A’ dies leaving behind daughter, sister and brother. The daughter will get 1/2.The
remaining half will be divided into three equal parts. The sister in presence of brother
will get one part as agnatic heir and the brother as agnatic heir will get two parts.

Consanguine Sister

A consanguine sister is excluded by a son, son’s son how low so ever, father, true
grandfather, full brother or two full sisters. Her Quranic share is one-half and in case two
or more they take two-third collectively. Existence of one full sister reduces her share to
one-sixth. A consanguine brother’s existence converts her into an agnatic heir.
Illustrations
1. ‘A’ dies leaving behind son and consanguine sister. The consanguine sister in
presence of son will get nothing. The son will get the whole property.
2. ‘A’ dies leaving behind father, daughter and consanguine sister. The consanguine
sister will be excluded by the father.
3. ‘A’ dies leaving behind widow, consanguine sister and full brother. The consanguine
sister will be excluded by the full brother.
4. ‘A’ dies leaving behind widow, mother, daughter and consanguine sister. All the
surviving heirs will get their respective shares as Quranic heirs.
5. ‘A’ dies leaving behind consanguine brother and consanguine sister. The consanguine
brother will convert her into an agnatic heir.
The consanguine brother will get 2/3 and consanguine sister will get 1/3

Uterine Brother and Sister

A uterine brother or sister is not always entitled to a share by inheritance and is

totally excluded from succession by any child or grandchild how low so ever or by a
father or a true grandfather how high so ever or by daughter or son’s daughter. When
entitled to succeed, a uterine sister always inherits as Quranic heir and takes one-sixth and
if two or more, they take one third. The position of a uterine brother is not different from
that of a uterine sister. He like the sister always inherits as Quranic heir and takes one-
sixth and if two or more they take one-third between them sharing equally. No
discrimination exists on the basis of gender, both male and female share equally.
Illustrations
Islamic Law of Inheritance Part III
Shares of Class II and Class III heirs
Introduction
In continuation of our earlier lectures on Islamic law of inheritance let us now
proceed to the detailed discussion of Class II and Class III heirs. The heirs of Class
II are classified into three groups. The heirs of Class III are divided into four groups.
The Class III heirs do not inherit together with a Quranic heir except widow or
widower. These heirs do not equally inherit with the residuary.
Class II heirs
The Class II heirs consists of agnates. An agnate is a person related to the deceased
through male links only; for example, the son’s son or the son’s daughter, the father
or the father’s father. Agnates by relationship are classified into three groups:

1) Agnates in their own rights (asaba bi-nafsihi)

2) Agnates in another’s rights (asaba bi-ghayrihi)
3) Agnates together with another (asaba maa-ghayrihi)

All the heritable estate that remains after the payment of all legal shares (Quranic
heirs) is taken by the agnate in his own right. Thus a female can never be a residuary in
her own right, but can be a residuary in another’s right or together with others. An agnate,
where he happens to be the only heir would take the entire estate as a residuary.

Agnates in their own rights (asaba bi-nafsihi)

Agnates in their own rights have been classified as:

(1) descendants of the deceased;
(2) his ascendants;
(3) descendants of his father;
(4) descendants of his grandfather.
Preference is given to the nearest male relative then to the one nearer than the rest in the
following order:
First son, then son’s son how low se ever, then father, who when accompanied
with one daughter or more, becomes a residuary as well as sharer then father’s father (true
grandfather) how high so ever. Then the father’s descendants, namely full brother, then
consanguine brother, then full brother’s son, then consanguine brother’s son how low so
ever. Then comes the turn of the grandfather’s descendants, namely, the father’s full
brother, then consanguine brother then full paternal uncle’s son, then half paternal uncle’s
son how low so ever. Then comes the father’s paternal uncle, then his son, then the
grandfather’s paternal uncle and then his son, to any degree of descent.
This group consists of limitless number of blood relations who are all male
agnates. They constitute the most important class; in reality these constituted the tribal
heirs of pre-Islamic Arabia. An interesting sub-class of agnates is that of the sons. The
son is not one of the strictly Quranic shares; but he is a special agnate who cannot be
excluded by any other heirs of any class, and who excludes other heirs, agnates or
excludable sharers. Thus in the first instance the residue devolves on the son or sons
together.
Illustrations
1. ‘A’ dies leaving behind two sons, two sisters, one brother and father’s brother.
Sons will exclude sisters, brother and father’s brother. The whole estate will be
divided into two parts: Each son will take one part.
2. ‘A’ dies leaving behind son, son’s son and brother. The son will get the whole
estate .The son’s son and brother stand excluded.
3. ‘A’ dies leaving behind son’s son, brother and father’s brother. The son’s son will
get the entire property. He will exclude both brother and father’s brother.
4. ‘A’ dies leaving behind father, father’s father, brother and father’s brother. The
father will get the entire estate and exclude father’s father, brother and father’s
brother.
5. ‘A dies leaving behind brother, father’s brother and father’s brother’s son. The
brother will exclude father’s brother and father’s brother’s son .He will get the
entire property.
6. ‘A’ dies leaving behind son and father. The father will get 1/6 as a Quranic heir.
The son will take the residue as an agnatic heir, viz.,5/6.
 7. ‘A’ dies leaving behind son, father and father’s father. The father will exclude
father’s father. He will get 1/6 as a Quranic heir and the son will get residue as an
agnatic heir, viz., 5/6

Agnates in another’s rights (asaba bi-ghayrihi)

This group consists of daughters co-existing with son or daughters of son co-
existing with son’s son how low se ever, and sisters, full or consanguine, with their
brothers. When a son is present the children inherit as residuary heirs, sharing the estate,
or the residue thereof, the rule that the male member takes the double share applies, a
daughter thus takes one-half of share of each son. This is known as the principle of tasib.
A son converts his sister, the daughter of the deceased, into an asaba or residuary, and the
daughter is said to inherit in these circumstances as ‘asaba bi-ghayrihi’ or residuary by
another, as opposed to the son who is ‘asaba bi-nafsihi’ or residuary in his own right.
Like a daughter, the son’s daughter in presence of a son’s son of equal degree inherits as a
residuary through the rule of tasib. Similarly, a full sister is converted into a residuary by
a full brother and a consanguine sister by consanguine brother.
Illustrations
1. ‘A’ dies leaving behind son and daughter. The presence of son will convert
daughter into an asaba. The property will be divided into three parts. The son will
get two parts and daughter one.
2. ‘A’ dies leaving behind one son and two daughters. The property will be divided
into four parts. The son will get two parts and two daughters will get one each.
3. ‘A’ dies leaving behind two sons and two daughters. The property will be divided
into six parts. The sons will get two parts each and daughters will get one part
each.
4. ‘A’ dies leaving behind son’s son and son’s daughter. The property will be divided
into three parts. The son’s son will get two parts and son’s daughter one.
 5. ‘A’ dies leaving behind one sister and one brother. The brother will convert sister
into an asaba and accordingly the property will be divided into three parts. The brother will get two parts and sister one.

6. ‘A’ dies leaving behind two cansanguine sisters and one consanguine brother. The property will be divided into four parts. The consanguine

brother will get two parts and two consanguine sisters will get one each.

7. ‘A’ dies leaving behind one son, two daughters, one brother and two consanguine sisters. The son will exclude brother and two consanguine

sisters and convert daughters into agnatic heirs. The property will be divided into four parts. The son will get two parts and daughters one each.

Agnates together with another (asaba maa-ghayrihi)

This group consists of sisters co-existing with daughters or son’s daughters. Where sisters co-exist with daughters they should be treated as

residuaries. If there is one daughter and one sister. The daughter takes her Quranic share and the sister takes the residue as an agnatic heir. Similarly if there

are two daughters and two sisters, the daughters have precedence. They take Quranic share and the residue is given to the sisters. The daughter is preferred

as a descendant to the sister who is a collateral.

Illustrations

1. ‘A’ dies leaving behind one daughter and one sister. The daughter gets ½ as a Quranic heir and sister gets residue as an agnatic heir.

2. ‘A’ dies leaving behind two daughters and one sister. The two daughters will get 2/3 as Quranic heirs collectively to be shared equally by them.

The sister will get residue as an agnatic heir

3. ‘A’ dies leaving behind two daughters and two sisters. The daughters will get 2/3 as quranic heirs and sisters will get residue.

Class III, Uterine Heirs (dhawul-arham)

The third principal class consists of uterine heirs or distant kindred. A uterine heir is any relative who is neither a Quranic sharer nor an agnate. The uterine

relations succeed to the inheritance of the deceased according to the class to which they belong and to their respective rights. Uterine heirs do not inherit

together with a sharer or residuary except with the husband or wife. Distant kindred are of four kinds:

(1) descendants of the deceased;

(2) his ascendants;

(3) descendants of his parents, and

(4) descendants of his paternal and maternal grandfathers and grandmothers.

Preference is given to the nearest in the following order:

 First place is given to the descendants of the deceased, namely, children of their daughters and of their son’s daughters how low so

ever they may be. Next comes the turn of ascendants namely, false grandfather and false grandmother, how high so ever. A false

grandfather means a male ancestor between whom and the deceased a female intervenes; for example the mother’s father and the

mother’s mother’s father. A false grandmother means a female ancestor between whom and the deceased a false grandfather intervenes;

for example the mother’s father’s mother. Then comes the turn of the descendants of his parents namely, children of full or consanguine

sisters and children of uterine brothers and sisters and daughters of full or consanguine brothers how low so ever. Next comes the

descendants of the deceased’s true and false grandfathers and grandmothers, namely maternal uncles and aunts, father’s uterine brothers,

paternal aunts, paternal uncle’s daughters and their children. Next are the paternal aunts and maternal aunts and uncles of ascendants,

uterine brothers of male ascendants and all parental uncles of female ascendants and their children howsoever removed they may be.

Shares of Uterine heirs

The uterine heirs are entitled to succeed in two situations;

1. When there is no sharer or residuary

2. When there is widow or widower only

In situation number one they are entitled to take the whole estate and in situation number two they take the residue after deducting the share of the spouse.

Group I Decendants

Where the claimants are equal in degree and their ascendants (through whom they are
related to the deceased) happen to be of the same sex, regard is to be had to the sex of the
claimants themselves. Where the heirs as well as the (intermediate) ancestors are of
different sexes two, different views in this regard have been taken. According to Imam
Muhammad, the sex of the ancestor would be taken into consideration and property will
be divided accordingly. For example, a daughter’s son’s daughter co-existing with a
daughter’s daughter’s son. Two-third would be given to the daughters’s son’s daughter
that being the share of her father, and one-third to daughter’s daughter’s son, that being
the share of his mother. Imam Yousuf has taken a contrary view. To him the sex of the
claimants is to be taken into consideration. The view taken by Imam Muhammad has
been accepted by the Hanafi jurists. This rule, however, is not followed in India and it is
Imam Muhammad’s rule which is followed here.
Illustrations
1. ‘A’ dies leaving behind daughter’s daughter and daughter’s son. The property will
be divided into three parts .The daughter’s son will get two parts and daughter’s
daughter will get one part.
2. ‘A’ dies leaving behind widow, daughter’s daughter and daughter’s son. The
widow will get her Quranic share and the residue will be divided into three parts,
daughter’s son will get two parts and daughter’s daughter one part.
3. ‘A’ dies leaving behind daughter’s son’s daughter and daughter’s daughter’s son.
According to Imam Yousuf intermediate ancestors sex is not regarded and shares
are allotted on the basis of the sex of the claimants and accordingly daughter’s
daughter’s son will get two shares and daughter’s son’s daughter will get one
share.
According to Imam Muhammad intermediate ancestors sex is relevant and it will
be daughter’s son’s daughter who will get two shares and daughter’s daughter’s
son is entitled to one share only.
Group II Ascendants
Amongst the ascendants the estate will devolve upon the mother’s father and in his
absence between those false grandparents in the third degree who are related to the
deceased through Quranic heir, namely the father of father’s mother and the father
of mother’s mother. The father of father’s mother, belonging to the paternal side
will take 2/3 and the father of mother’s mother belonging the maternal side will
take 1/3 despite both are of the same sex.
In their absence the property will be distributed amongst the remaining false
grandparents in higher degrees.
Group III
This consists of descendants of brothers and sisters. The general rule that the
nearer in degree exclude the more remote determines the order of succession.
Group IV
 In case there are no heirs in group I, II and III the property will devolve upon the
heirs of group IV. This consists of descendants of paternal and maternal grand
parents ( uncles and aunts and their descendants). The following general rules
determine the order of succession:
1. The paternal relations take a double share to that taken by the maternal
relations.
2. The full blood excludes the half blood by father or mother and those of half
blood on the father’s side exclude those of half blood by mother’s side.
3. If the claimants are equal in degree and relationship the issue of residuary is
preferred.
The heirs of group IV are found rarely.
Conclusion
In terms of inheritance the Quranic heirs who are not otherwise excluded are followed by
class II heirs (agnates).These agnates are classified as; agnates in their own rights,
agnates in another’s rights and agnate together with another. Amongst these agnates the
son occupies the pre-eminent place as he cannot be excluded by any other heir of any
class. He not only excludes other agnates but even excludable Quranic heirs. In absence
of agnates and Quranic heirs (except widow or widower) it is the uterine heirs who
inherit. There is divergence in opinion between Abu Yousuf and Imam Muhammad
regarding the allotment of shares amongst the descendants in case the intermediate
ancestor differ in their sexes.