Unit 2
Unit 2
Unit 2
Deemed to be University
Introduction: Customary Principles of Succession
In the pre-Islamic Arabia, the law of inheritance was based on Comradeship-
in –arms and on this basis, even the wife and the children were excluded from
inheritance.
The four basis principles of the pre-Islamic law of succession were:
1. The nearest male agnates or agnates succeeded to the total exclusion of
remoter agnates.
For example , if a Muslim died leaving behind a son, and a son of a
predeceased so, then the son inherited the entire property and the grandson was
totally excluded.
2. Females were excluded from inheritance and also the cognates. For
example , a daughter or a sister or a daughter’s son or sister’s sons could
never succeed to the property.
3. The descendants were preferred over the ascendants, and ascendants over
the collaterals. For example, in the presence of son , father could not
succeed. Similarly, in the presence of father, brother could not inherit.
4. Where there were more than one male agnates of equal degree, all of them
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Inherited the property and shared it equally, taking per capita. For example if a person
died leaving behind three brothers, all of them succeeded and each took one-third of
the state.
After the Origin of Islamic Religion: The Koran did not create a new structure of
succession , but merely amended and modified the customary law of succession so as
to bring it in conformity with Islamic philosophy. The Prophet introduced the
following new principles on the aforesaid customary law of inheritance.
1. The husband and wife being equal are entitled to inherit to each other.
2. Some near females and cognates are also recognized and enumerated as heirs.
3. The parents and certain other ascendants are made heirs even when there are
descendants.
4. The newly created heirs(those who were not entitled to inherit under customary
law) are given specified shares.
5. The newly created heirs inherit the specified shares along with customary heirs,
and not to their exclusion.
1. The first object of the Islamic Law of inheritance is to ensure that the
relations who are dear and near to the deceased owner get a substantial part of
the state of the deceased. This object is achieved by imposing a restriction
upon the testamentary power.
2. The second object is that the scheme of distribution among the heirs
should not be distorted by the exercise of testamentary power . This is
achieved by forbidding bequests to heirs. A Sunni Mohammedan cannot
by will, bequest property to any of his heirs , such a bequest would be void
unless the other heirs consent to it. .
Under Shia Law so long as the testator is not bequeathing more then 1/3rd of
his estate, he can make a bequest even to an heir. It is only the bequest
exceeds 1/3 of his estate , then other heirs consent is required.
3. The third object is that the heir should be properly classified.
according the degree of relationship to the deceased.
According to Hanafi Law , they are three classes of heirs :
3. Sharers
4. Residuaries
5. Distant kindred.
The distant kindred do not inherit if there are either sharers and Residuaries .
There is only one exception to it . Distant Kindred can take when there are no
Another point to note is that an heir can only gain a share in the property of the
deceased if the heir outlives the deceased. However, if the heir apparent dies
before the deceased then he or she will gain no right to inheritance and
thereby their family members cannot take up their share in place of them.
Under the Hindu law, a coparcenary gains interest or right in the
property of the deceased the moment such a coparcenary is born. This right to
property by birth . But because there is no concept of a joint family under
Muslim law, there is no concept of the right to property by birth either.
Important definitions:
1. True grandfather: A male ancestor between whom and the deceased, no
female intervenes is known as the true grandfather.
For Instance, (a) the father’s father (b) father’s father’s father and his father
how high so ever - are all true grandfathers.
(i) 1/6 share: Where there is a child or son's child how low so ever or where
there are 2 or more brothers or sisters or one brother and one sister, whether
full, consanguine or uterine.
(ii) 1/3 share: When there is no child or child of the son how low so ever and
no brothers or sisters.
(iii) In circumstances, where there is a father and a wife or husband.
It is 1/3 of remaining share after deducting the wife's or husband's share:
And the mother is never a Residuary.
Q 2: If there are only, Father, mother and Daughter for the Propositus:
Ans: (a) Mother: 1/6
(b) Daughter 1/2
(c) Father 1/6 as sharer plus As Residuary because of no son.
Q 3: If there are only, Father, mother and Sister for the Propositus
Ans: Mother : 1/3
Sister; excluded by father
Faher : Residue(2/3) (because there is no son)
When there are sharers and a residue of estate is left after allotting them their
shares or when there are no sharers, then whatever is left in the former case,
and the entire estate in the latter case, goes to the residuaries.
There are certain sharers who do not take their specified shares if a residuary
of equal rank co-exists. In such a case they become residuaries. They are
called the Quranic residuaries, or residuaries with another. They are shown in
the table below:
The residuaries may be classified into (i) Descendants , (ii) Ascendants and
(iii) Collaterals
(i) Descendants:
1. Son: (a) When there is a daughter, he takes double portion.
(b) Where there is no daughter, he takes the entire residue
2. Son’s son, (a) When there is son’s daughter, he takes double portion
how-low-soever. (when there is equal son’ son, but there is a lower
son’s son’s daughter, if she does not inherit as a sharer,
inherits as residuary with lower son’s son).
(b) Nearer Son’s son excludes remoter.
(c ) Two or more son’s son s take the estate in equal sharers.
(Per Capita)
C. Collaterals:
(i) Descendants of Father:
5. Full Brother: (a) Where there co-exists a full sister, he takes double
portion.
(b) In the absence of the sister, he takes the entire
residue
6. Full Sister: If residuaries 1 to 5 are not there, she takes as residuary
with daughters or son’s daughter(h.l.s) or with one
daughter, son’s daughter/daughters.
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11. Full Brother’s son’s son: In default of above residuaries , he takes the
entire residue
12. Consanguine brother’s In default of above residuaries. He takes the
son’s son: entire residue.
Then come the male descendants of brother’s son’s son and then the male
descendants of consanguine brother’s son’s son alternatively.
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2. The sharers should get fixed shares and the Residuaries should take what
is left after the sharers take their shares
3. The son is always a residuary, so also is the son’s son , how-low-so-ever.
4. The father becomes simply a residuary when the deceased has not left a
child or a child of a son, how-so-ever. He takes in both capacities as
sharer and residuary.
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In the absence of sharers and the residuaries , the estate devolves on the
distant kindred. There is only one case in which the distant kindred inherits
along with a sharer, that is., when the only surviving sharer is a husband or a
wife and there is no residuary , then the husband or wife takes his or her share,
and the rest of the estate goes tot he distant kindred.
In the class of distant kindred are all those blood relations of the deceased
who have not found a place either among the sharers or residuaries, there are:
(a) Female agnates: and
(b) Cognates , both males and females .
The above two classes of relations constitute the distant kindred.
I Descendants of the deceased: Under this category , the following will fall:
Daughter's children and their descendants
Sometimes When the inheritance is distributed among the sharers, the total
shares is less than unity. Then the remainder should to the Residuaries. But
there may be no residuaries among the relations of the propositus. In such a
case the residue returns to the sharers themselves and their shares are
proportionately increased. The formula adopted where there is no husband or
wife among sharers, is to reduce the shares to a common denominator and then
the denominator of each share is reduced so as to be equal to the sum of the
numerators. By thus reducing the denominator the fractional shares are return.
In proportionately increased. This is called the doctrine of Radd or Doctrine
of Return.
In other words, If Residue is left after distributing the property of the
deceased amongst the Sharers, but there is no heir of the deceased
falling under the category of Residuary, the residue of the property
reverts back to the Sharers in the proportion of their shares. The Right
of
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the Sharers to revert back the Residue property to the Sharers in absence
of the residuary heirs is called as the Return or Doctrine of ‘Radd’.
In applying this doctrine, it should be noted that so long as there is any
other sharers or even a distant kindred, neither the husband nor the wife can
claim the benefit of this doctrine. In the absence of any other heir, the
husband or the wife as the case may be claim the benefit of the doctrine.
According to this Doctrine under the Muslim Law, the residue
property returns to the Sharers and not the Distant Kindred in absence of any
heir under the residuary category. If there is more than one Sharer then the
property should be returned in the proportionate shares and if there is one
sharer then the whole of the residue property should be transferred back to the
sole sharer. The residue cannot be transferred to the Distant Kindred because
according to the rules, the distant kindred do not get anything so long as there
is a Sharer or Residuary alive.
Exception: The exception to this doctrine is that neither the husband nor the
wife is entitled to the return so long as there is another sharer or distant
kindred alive.
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However, according to the early orthodox law, this return of residue property
was not allowed in the case of a husband or a wife but the later lawyers have
allowed the return to a husband or wife when there are no other heirs and this
claim has been recognized in India in M. A. Chowdry v. S. Banoo, and Bafatun
v. B. Khanum.
● The total sum of the properties of Mother and Daughter will be, 1/6 + 1/2 =
2/3.
● 2/3 is less than the unity and the 1/3 of the property will still remain after
distributing property the amongst the Sharers. Therefore, in this case, the
doctrine of ‘Return’ or ‘Radd’ will apply.
● The first step would be to reduce the fractions of the Sharers to a common
denominator. Thus, 1/6 + 1/2 = 2/3 = 1/6 + 3/6 (The fractions are reduced
in such a form where 6 is the common denominator).
When the inheritance is distributed among the Koranic sharers, sometimes the
total exceeds unity. So the share allottable to each sharer is proportionately
reduced. The formula adopted for this purpose is to being all the fractional
shares to one common denominator. Then the denominator of each share is
increased so as to be equal to the sum of the numerators. By thus increasing
the denominator the fractional shares are all proportionately reduced. This is
called the doctrine of Aul or Doctrine of increase.
In other words, In case, the total sum of the specific shares allotted to various
shares exceeds the unity then the doctrine of increase (Aul) comes into the
application and the specific share of each sharer is reduced in a proportionate
manner. The proportionate share reduces in the following manner.
1. By reducing the shares to a common denominator.
2. By increasing the denominator to make it equal to the sum of the
numerators allowing the numerators to stand as they are.
Illustration: This Doctrine of ‘Aul’ can be explained with the help of an
illustration where a woman dies leaving behind her property. Then the property
left after paying for her funeral expenses, debts and legacies are distributed
among the Sharers. The husband of the deceased woman and her two full
sisters are alive and fall under the category of Sharer. Then, the Husband will
be entitled to 1/2 of the property of the deceased and the two full sisters will be
entitled to 2/3rd of the property.