NALSAR UNIVERSITY OF LAW

HYDERABAD

Lecture on:

SUCCESSION UNDER MUSLIM LAW

Concept of Succession under Islamic Law
by
Dr. Shaik Nazim Ahmed Shafi
B.Com., P.G.D.I.R.P.M., P.G.D.C.A., D.C.A. (Tally, ERP 9)., B.L., LL.M. (Alig.)., L.I.I.I., CCITM (Exports & Imports), Ph.D.,

Associate Professor of Law

MAHARASHTRA NATIONAL LAW UNIVERSITY NAGPUR

18-03-2023
 CONTENTS
PART-A

1. General Principles

2. General Rules

3. Rules of Total and Partial Exclusion

4. Hanafi Law of Inheritance (Sunni Law)

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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Law of Inheritance

PART-A
GENERAL PRINCIPLES & RULES

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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 1. GENERAL PRINCIPLES OF LAW OF INHERITANCE

 What is inheritance?: What the relatives of a deceased person get

without the consent or option of the deceased (propositus) in the

estate, i.e. the property or actionable claim left behind by him, is

known in legal terminology as “inheritance”.

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 Conditions for Inheritance: There are three conditions to inherit from

estate of a deceased person:

i. Certainty or a strong belief about the death of propositus;

ii. Certainty or a strong belief about the life of the claimant-heirs at the

time of the death of the propositus; and

iii. Knowledge about the dimensions of inheritance, i.e. knowledge as to

who is an heir and on what grounds.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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❑ The Islamic scheme of inheritance discloses three peculiarities:

i) The Quran gives specific shares to certain individuals;

ii) The Residue goes to Agnatic Heirs and failing them to the
Uterine Heirs;

iii) Bequests are limited to 1/3 of the estate.

❑ Note: No Muhammadan is allowed to make a Will in favour of any of

his heirs, and a bequest to a stranger is allowed only to the extent 1/3
of the property.
Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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 2. GENERAL RULES OF LAW OF INHERITANCE

1. Property
2. No distinction between Ancestral and Self-acquired Property.

3. Joint Family not being recognised, the principle of survivorship is also

not known.

4. No limited interest

5. No Rule of Primogeniture

6. Birth Right is not recognized

7. Vesting of Inheritance

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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Law of Inheritance

8. No Right by Birth

9. Devolution of Separate Shares

10. Missing Propositus

11. Missing Heirs

12. Illegitimate Person

13. Illegitimacy by ‘Lian’

14. A Child in the Womb

15. Death in common calamity

16. Doctrine of Representtion

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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 RULES OF TOTAL AND PARTIAL EXCLUSION

 Both under Sunni and Shia systems, every person is entitled to inherit,
unless there is something to exclude him. A child in the womb is
regarded as a living person provided he is born alive.

 Both the Shia and Sunni systems recognised two types of exclusions:

➢ Partial or Imperfect exclusion; and

➢ Total or perfect exclusion

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Law of Inheritance

PARTIAL OR IMPERFECT EXCLUSION

(It may come in TWO ways)

❑ Exclusion from one share and admission to another.

➢ For example, daughter in the presence of son is excluded as a ‘Sharer’ and

becomes ‘Residuary’.

❑ Partial reduction of the specific share because of the presence of certain heirs.

➢ For example, the share of wife is either 1/4th or 1/8th according to the absence
or presence of a child or child of a son, how low so ever. Similar is the case of
husband, whose share is either ½ or 1/4th.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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Law of Inheritance

TOTAL OR PERFECT EXCLUSION

❑ The term ‘total exclusion’ applies to cases when although a person,

related to the propositus and otherwise entitled to inherit, is excluded
by some ‘legal cause’.

❑ Both in Shia and Sunni systems this type of exclusion is based on three
principles:

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Law of Inheritance

❖ Principle-I: “Nearer in degree excludes more remote.”

Grand Father

Father

➢ Ex: Father (100%) excludes grandfather (0%).

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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Law of Inheritance

❖ Principle-II: “ A person who is related to the deceased through another is

exclude by the presence of latter.”

Father Brother

➢ Ex: Father (gets 100%) excludes brother (0%).

➢ Exception: Mother does not exclude brother or sister.

Brother Mother Sister

5/9 1/6 5/18 = 10+3+5 = 18
18 18
= 1
Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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Law of Inheritance

➢ Principle-III: “Full blood excludes half blood”.

Full Blood Half-Blood

Father----------------Mother Mother-----Father----Mother

Son Daughter Son Daughter

➢ Exception: Uterine relations (ie. Same mother but different fathers) are not
excluded on this ground.

Mother----Father------Father

son

son
Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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Law of Inheritance

MOST IMPORTANT OF TOTAL EXCLUSIONS UNDER MUSLIM LAW ARE ON

THE FOLLOWING GROUNDS:

❑ Religion

❑ Homicide

❑ Illegitimacy

❑ Relinquishment of Inheritance Rights

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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 HANAFI (SUNNI) LAW OF INHERITANCE

 Hanafi jurists divide heirs into seven classes, the three principal and
the four subsidiary classes:

❖ Principal Classes:

i. Quranic Heirs (Sharers);

ii. Agnatic Heirs (Residuaries);

iii. Uterine Heirs (Distant Kindred)

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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Law of Inheritance

❖ Subsidiary Classes:

iv. The successor by Contract;

v. The Acknowledged kinsman;

vi. The Sole Legatee;

vii. The State, by Escheat

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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Law of Inheritance

NOTE: (PRINCIPAL CLASSES)

 The first step in the distribution of the estate of a deceased Muslim, after
payment of his funeral expenses, debts and legacies, is to allot their
respective shares to the Quranic Heirs.

 If any residue is left, it is to be divided among Agnatic heirs (Residuaries).

 If there be neither Sharers nor Residuaries, the estate will be distributed

among Distant Kindred. The distant kindred are not entitled to succeed so
long as there is any heir belonging to the class of Sharers or Residuaries. But
there is one case in which the Distant Kindred will inherit with a Sharer, and
that is when the Sharer is the wife (widow) or husband of the deceased.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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Law of Inheritance

NOTE: (SUBSIDIARY CLASSES)

❑ In the absence of a member of the three principal classes (ie. Quranic,

Agnatic and Uterine heirs) the right of inheritance devolves upon
subsidiary heirs, among whom each class excludes the next.

❖ Subsidiary Classes:
i. The successor by Contract;
ii. The Acknowledged kinsman;
iii. The Sole Legatee;
iv. The State, by Escheat
Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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Law of Inheritance

(i) Quranic Heirs (Sharers)

 Sharers are those heirs who are entitled to get a prescribed share from the
heritable property. The Sharers and their respective shares in the property of
a deceased are given in Quran. The Sharers are, therefore, also called as
Quranic heirs.

 In the distribution of property, the Sharers get preference over the other class
of heirs, therefore, first of all the respective share is allotted to each Sharer. It
may be noted that Sharers are those heirs whose respective shares are given
in Quran; therefore, their shares cannot be altered by any human effort.
Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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Law of Inheritance

(ii) Residuaries or Agnatic Heirs

(Note: Agnatic Heirs means a person related to wholly through males either by
blood or by adoption (No adoption under Muslim Law).
 Residuaries are those heirs who inherit only the residue of the property after
allotment of respective shares to the Sharers. Obviously, the Residuaries have
no specific share of their own. After giving the property to the Sharers in their
fixed shares, if there remains some property that ‘remaining property’
(residue) is available to the Residuaries.

 The residue may differ from case to case. If there are no Sharers, the whole is
inherited by the Residuaries. Residuary heirs are also termed as Agnatic heirs
because they inherit through male relations.
Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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Law of Inheritance

(iii) Distant Kindred or Uterine Heirs

 All those persons who are related to propositus through blood but
could not be included as heirs in the class of Sharers or of
Residuaries, are called distant kindred. If a propositus has neither
Sharers nor Residuaries, the properties are inherited by his Distant
Kindred. Distant Kindreds cannot inherit in presence of any Sharer or
Residuary. The heirs included in this class are also termed as uterine
heirs.

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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Law of Inheritance

Explanation
i. ‘Father’ means only the real father of the deceased and not a step
father.

ii. ‘Grandfather’ includes great-grandfather on the paternal side, how

high so ever (hhs);

iv. ‘Husband’ and ‘Wife’ mean those men and women between whom
there was a valid marriage; if there was no valid marriage the parties
will not be each other’s heir;

vi. ‘Daughter’ includes son’s daughter, son’s son’s daughter, and son’s
son’s daughter, how low so ever (hls);

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Law of Inheritance

vi. ‘Full Sister’ means a daughter of the same parents;

vii. ‘Consanguine Sisters’ are those having a common father but different
mothers’

iv. ‘Uterine Brothers’/Sisters’ are those who have a common mother but
different fathers;

vi. ‘Mother’ means the woman who gave birth to the deceased and does
not include a step-mother;

vii. ‘Maternal Grandmother’ includes mother’s mother and her mother

and grandmother how high so ever.

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Law of Inheritance

1. QURANIC HEIRS (SHARERS)

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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Law of Inheritance

(i) Quranic Heirs (SHARERS) (4 Men and 8 Women)

 These are the heirs whose share are fixe by the Holy Qur’an, Traditions

of the Prophet or consensus of the community, and are to be paid

their shares first out of the deceased person’s estate.

 (Refer: Table of Sharers & Residuaries)

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Law of Inheritance

Table of Sharers
Sl..No. Men Sl. No. Women

1. Father (SRA) 1. Mother

2. True Grandfather (h.h.s.)(SRA) 2. Paternal or Maternal Grandmother
3. Husband 3. Wife
4. Uterine Brother 4. Uterine Sister
5. Daughter (SRA)
6. Full Sister (SRA)
7. Son’s Daughter (h.l.s.) (SRA)
(SRA) Sometimes Residuary Also) 8. Consanguine Sister (SRA)

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Law of Inheritance

TABLE OF RESIDUARIES
(Note: Please Refer the Table)

I. Descendants: 1. Son
2. Son’s Son

II. Ascendants: 3. Father

4) True Grandfather (h.h.s.)

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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Law of Inheritance

III. Descendants of Father: 5. Full Brother

6. Full Sister

7. Consanguine Brothers

8. Consanguine Sister

9. Full Brother’s Son

10. Consanguine Brother’s Son

11. Full Brother’s Son’s Son

12. Consanguine Brother’s Son’s Son

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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Law of Inheritance

IV. Descendants of True Grandfather (h.h.s.):

13. Full Paternal Uncle

14. Consanguine Paternal Uncle

15. Full Paternal Uncle’s Son

16. Consanguine Paternal Uncle’s Son

17. Full Paternal Uncle’s Son’s Son

18. Consanguine Paternal Uncle’s Son’ Son

19. Male Descendants of more remote True Grandfathers

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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Law of Inheritance

PRACTICAL SESSIONS

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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 Problem-1
Father; True Grandfather
➢ Property is = 1

➢ Go To: Table of Shares – Sunni Law

➢ Select Father and check the share: Father gets 1/6 Share

➢ Balance: 1-1/6 = 5/6

➢ Check: True Grandfather under Column-4: “provided there is no father”

➢ Because “Father” is there “True Grandfather” will not get anything.

➢ Hence Father gets: His actual share 1/6 + Under Residuary (II. Ascendants;
3. Father)

➢ Finally Father gets: 1/6 + 5/6 = 6/6 = 1

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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 ANSWER
Sl. No. Heirs Status Rule Share
Sharers Residuaries
1. Father Yes 1/6 Sl. No.3 (5/6) 1
2. True
Grand No -- -- --
Father

Note: If you are not giving calculations and table,

your answer will not be evaluated
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 Problem-2
Father; Mother
➢ Property = 1

➢ Go To: Table of Shares – Sunni Law

➢ Select “Father” and check the share: Father gets 1/6

➢ Select “Mother” and check the share: Mother gets = 1/3

➢ Hence, Father gets = 1/6 share; and Mother gets = 1/3 share
➢ Total Shares of Father + Mother = 1/6 + 1/3 = 3 + 6 = 9 = 1
18 18 2
➢ 1 – ½ = Residue is ½;

➢ Hence, Father gets (1/6 + 1/2 =2/3) and Mother gets 1/3= 2 +1 = 3 = 1
3 3
Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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 Problem-3
Father; Mother; Son; Daughter

➢ Father = 1/6
➢ Mother= 1/6
➢ Son = Not shown in Sharers, but shown in Residuary (Under Descendants)
➢ Daughter = Go to Sharers (Sl. No. 7) and Column 4
➢ Go to Residuary (1. Descendants 1. Son; Daughter takes as a Residuary)
➢ Property = 1
➢ Father: Mother = 1/6 : 1/6 = 2/6 =1/3
➢ Balance 1 – 1/3 = 2/3
➢ Balance of 2/3 to be shared between Son: Daughter ie. 2:1 = 2/3 and 1/3
➢ Balance of 2/3 shared by Son in the ratio of 2/3 = 2/3 X 2/3 = 4/9
➢ Balance of 2/3 shared by Daughter in the ratio of 1/3 = 2/3 X 1/3 = 2/9
➢ Father: Mother: Son: Daughter = 1/6 : 1/6: 4/9:2/9
➢ Add Total shares: 1 : 1: 4 : 2 = 3 + 3 + 8 + 4 = 18 = 1
➢ 6 6 9 9 18 18
Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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 Problem-4
Wife and Son

➢ Wife: Go To Sharers Sl. No. 4 – she gets = 1/8

➢ Son: He is not in Sharer’s List, hence go to Residuaries (I. Descendants:

1. Son)

➢ Property = 1

➢ Wife = 1/8

➢ Balance: 1 – 1/8 = 7/8

➢ Hence, Son as a Residuary gets the residue ie. 7/8

➢ Finally, Wife (1/8) and Son (7/8) = 1 + 7 = 8 = 1
8 8 8

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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 Problem-5
Daughter; Full Sister

➢ Property = 1

➢ Daughter: Go To Sharers Sl. No.7 = 1/2

➢ Full Sister: Go To Sharers Sl. No. 11 = 1/2

➢ Hence: Daughter + Full Sister = 1/2 + 1/2 = 1

Dr. Shaik Nazim Ahmed Shafi, Assistant Professor of Law NALSAR University of Law
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 Problem-6
Mother, Father, Son

❑ Total Property = 1
❑ Mother = 1/6 (M) i.e. 1 – 1/6 = 5/6 ……..(Balance of Property left after
giving to Mother)
❑ Father = Balance 5/6 - 1/6 (F) = 4/6….(Balance of Property left after
giving to Father
❑ Son: Balance is 4/6 i.e., 2/3
❑ Add: Father+Mother+Son’s Property: 1/6+1/6+2/3 = 1 + 1 + 4 = 6= 1
6 6
❑ Hence, Total Property is: 1
❑ ANSWER: Mother: 1/6; Father: 1/6; Son: 2/3
Refer Next Slide for Table:

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 2. Table
Sl. No. Heirs Status Rule Share
Sharers Residuaries
1. Mother Yes State the Rule - 1/6
2. Father Yes State the Rule - 1/6
3. Son Yes - State the Rule 2/3

Note: If you are not giving calculations and table,

your answer will not be evaluated
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 Doctrine of Aul (Increase)

❑ If it is found on assigning their respective shares to the Sharers that

the total of the shares exceeds unity the share of each Sharer is
proportionately diminished by reducing the fractional share to a
common denominator, and increasing the denominator so as to make
it equal to the sum of the numerators.

❑ Example: Refer Next Slide

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❑ Example: (i) Husband and (ii) Two Full Sisters

❑ As per the Rule of Husband: He gets: 1/2 share

❑ As per the Rule of Full Sister’s: They get: 2/3 share

❑ H + FS = 1/2 + 2/3 = 3 + 4 = 7
6 6
❑ Note: The sum total of 1/2 and 2/3 exceeds unity. The fractions are
therefore reduced to a common denominator, which, in this case, is 6.
The sum of numerators is 7, and the process consists in substituting 7
for 6 as the denominator of the fractions 3/6 and 4/6. By doing so the
total of the shares equals unity. The doctrine of ‘Increase’ is so called
because it is by increasing the denominator from 6 to 7 that the sum
of the shares is made equal to unity.
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❑ Example: A Mahomedan dies leaving a widow as his sole heir. The
widow will take 1/4 as Sharer, and the remaining 3/4 by Return. The
surplus 3/4 does not escheat to the Government

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 Doctrine of Radd (Return)

❑ If there is a residue left after satisfying the claims of Sharers, but there
is no Residuary, the residue reverts to the Sharers in proportion to
their shares. This right of reverter is technically called “Return” or
“Radd”.

❑ Exception: Neither the husband nor the wife is entitle to the Return
so long as there is any other heir, whether he be a Sharer of a Distant
Kinsman. But if there be no other heir, the residue will go the hubsand
or the wife, as the case may be.

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ALL THE BEST

END SLIDE

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 IMPORTANT TO NOTE
❑ In End-Semester Examination you will be supplied with a
copy of Table of Sharers and Residuaries.
❑ While giving your answer relating to Muslim Law of
Inheritance, you should give CALCULATIONS and also a
TABLE (Refer: Slides Nos. 23 & 24).
❑ You start from ONE PROPERTY and finally if you add all
shares you should get ONE PROPERTY i.e. 2 X 2 = 4 but
not less than four nor more than four.
❑ No assumptions/presumptions while calculating shares.
❑ Just giving direct answers will not fetch MARKS.

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 IN END-SEMESTER
YOUR ANSWER MUST REFLECT CALCULATIONS & TABLE

1. Give Calculations

2. Give a Table

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ALL THE BEST

END SLIDE

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