FUNDAMENTALS OF ISLAMIC LAW
OF INHERITANCE: AN INTRODUCTION
By
RIZVI, SYED AATIR HUSSAIN[1]
When a Muslim
dies leaving some property behind, the question arises as to how his property
is to be disposed of[2].
The rules regarding inheritance become very important because Islamic law restricts the power of
distribution of property through will[3]. Islam has devised many systems to avoid
concentration of wealth and inheritance is one of them. The Muslim law of inheritance comprises
beyond question the most refined and elaborated system of rules for the
devolution of property that is known to civilized world[4].
Even emphasis is given by the Prophet Muhammad
(PBUH) on learning these rules[5].
‘Existence of different schools of law and the further variations which have
been introduced into the traditional legal practice of a given area under the
recent process of reform, modern Islamic law,
when viewed on a world-wide basis therefore, is an extremely complex and
variegated phenomenon[6]’.
It is always better to understand the pre-Islamic system of inheritance before
looking at the Islamic rules. It is
found that as a general rule, with exception of a few, the male agnates had the
entitlement for inheritance and females and cognates were totally excluded.
Even among agnates some had preferential right of inheritance, such as, the
descendants were preferred over ascendants and when more male agnates than one
were equally distant to the deceased, they used to go for per capita distribution among them.
However, the ‘Holy Quran does not expressly state the shares of the male agnatic
relatives as such, although it does enact that the share of male is twice of
that of a female, as Sunni jurists
take the view that the intention of the Quranic
injunctions was not to completely replace old customary agnatic system, but
merely to modify it with the objective of improving the position of female
relatives. It is in contemplation of that context, therefore, that Sunni Law is an amalgamation of the Quranic law superimposed upon the old
customary law to form a complete and cohesive system’[7].
On the contrary Shias took different
view and based their system of inheritance on Quranic injunctions while entirely neglecting the old customary
laws. ‘Thus the Islamic law of
inheritance rests basically upon the recognition of two distinct categories of
legal heirs-the male agnates (asaba),
the heirs of the tribal customary law, and the new Quranic heirs who are entitled to a prescribed portion (‘ahl al-faraid’)[8]’
The main elements of inheritance are (a)
deceased (moa’ris), (b) legal heir (waris) and (c) property left by deceased
(tark’a)[9].
These three elements must co-exist for the application of rules of inheritance.
At the time of death of the deceased, the respective shares of heirs
automatically devolve into them[10];
however the actual distribution takes place later. ‘The distinction between
ancestral and self-acquired property is neither recognized in Sunni law[11]
nor in Shia law, except in the cases
of (a) childless widow[12]
and (b) eldest son[13]’[14].
The reasons (asbab) due to which a
person becomes entitled to inheritance are; (a) consanguinity (blood relation with the deceased); (b)
affinity (zo’jiat or marriage); and
(c) slavery (moa’llat-not applicable now).
The blood relations include; descendants (children and their children hls[15]),
ascendants (parents and their parents hhs[16])
and collaterals (brothers and sisters). For entitlement through zo’jiat valid marriage must be existing
between deceased and the spouse, at the time of death of the deceased. However,
existence of waris at the time of
death of moa’ris[17]
alongwith absence of impediments[18]
to inheritance, are few other conditions for the entitlement and distribution
of heritable property.
After death of a Muslim, following financial obligations are deducted at priority
from the left over estate;
(1) Funeral
expenses;
(2) Debts;
(3) Payment
of service charges (if any) such as hospital bills etc accrued during last
days;
(4) Execution
of bequest (will).
Once the above are satisfied, the question
arises who are the legal heirs of the deceased and to what extent they will
inherit. For this purpose, we will have to look into the classes of heirs as
prescribed by Shari’a.
Classification
of Heirs:
Shias divide the heirs into two groups i.e. heirs
by consanguinity and heirs by marriage. The heirs by consanguinity are further
divided into three classes:
Class I (a) Parents;
(b) Children and other lineal descendants (hls).
Class II (a) Grandparents (hhs);
(b) Brothers/ sisters and their descendants.
Class III (a) Paternal uncles/ aunts and their
descendants;
(b) Maternal uncles/ aunts and their descendants.
Of these three classes of heirs, the first
class as a whole excludes the rest of the two and so on i.e. nearer in degree
excludes the farther. Husband and wife are included in heirs by marriage. On
the other hand, Sunnis classify the
legal heirs into following:
(a)
Sharers;
(b)
Residuaries;
(c)
Distant
kindreds.
Sharers:
The Holy Quran
mentions only nine persons as sharers; therefore Shias recognize these nine[19]
only, whereas Sunni Jurists have
added three more by analogy which make them twelve in number. These three added
by analogy are maternal grandmother, paternal grandfather and agnatic
granddaughter. These all collectively are termed as ‘Quranic Heirs’. They get fixed shares and the rest of the estate is
distributed among residuaries[20].
Out of these twelve, four are termed as, ‘primary
heirs’ as they are never excluded (except presence of
After allocating respective shares of each
sharer; sometimes a residue (al-rudd)
is left without any residuary, in such a case the same is distributed back
among the sharers in proportion to their respective shares; on the other hand a
situation may arise, where the fixed shares of the sharers are more than unity.
In such a case, the respective share of each sharer is reduced proportionally[22].
Residuaries:
Those who take no prescribed share, but
succeed to the residue left once the claims of the sharers are satisfied, are
termed as ‘residuaries’, they
include:
(a)
Descendants;
(b)
Ascendants;
(c)
Descendants
of father i.e. full brother/s and sister/s, consanguine brother/s and sister/s;
(d)
Descendants
of true grandfather i.e. paternal uncle/s and aunt/s, etc.
Distant
Kindreds[23]:
They are a group of potential heirs relating
to the class of cognate relatives. They are all those relations by blood who
are neither sharers nor residuaries and are only entitled to inherit when there
are no sharers and residuaries to get the estate[24].
In the Holy Quran following verses deal with rules regarding inheritance i.e.
Right
of inheritance for both men and women;
“For men is a share of what the parents and
close relatives leave, and for women is a share of what the parents and close
relatives leave, be it little or much - an obligatory share[25]”.
And
“And when [other] relatives and orphans and
the needy are present at the [time of] division, then provide for them
[something] out of the estate and speak to them words of appropriate kindness[26]”
Shares
of son, daughter, father and mother;
“Allah instructs you concerning your
children: for the male, what is equal to the share of two females. But if there
are [only] daughters, two or more, for them is two thirds of one's estate. And
if there is only one, for her is half. And for one's parents, to each one of
them is a sixth of his estate if he left children. But if he had no children
and the parents [alone] inherit from him, then for his mother is one third. And
if he had brothers [or sisters], for his mother is a sixth, after any bequest
he [may have] made or debt. Your parents or your children - you know not which
of them are nearest to you in benefit. [These shares are] an obligation
[imposed] by Allah. Indeed, Allah is ever Knowing and
Wise[27]”.
And
Inheritance
of spouse;
“And for you is half of what your wives leave
if they have no child. But if they have a child, for you is one fourth of what
they leave, after any bequest they [may have] made or debt. And for the wives
is one fourth if you leave no child. But if you leave a child, then for them is
an eighth of what you leave, after any bequest you [may have] made or debt. And
if a man or woman leaves neither ascendants nor descendants but has a brother
or a sister, then for each one of them is a sixth. But if they are more than
two, they share a third, after any bequest which was made or debt, as long as
there is no detriment [caused]. [This is] an ordinance from Allah, and Allah is
Knowing and Forbearing[28]”.
And, further;
“And for all, We
have made heirs to what is left by parents and relatives. And to those whom
your oaths have bound [to you] - give them their share. Indeed Allah is ever,
over all things, a Witness[29]”
Childless
death;
“They request from you a [legal] ruling. Say,
" Allah gives you a ruling concerning one having
neither descendants nor ascendants [as heirs]." If a man dies, leaving no
child but [only] a sister, she will have half of what he left. And he inherits
from her if she [dies and] has no child. But if there are two sisters [or
more], they will have two-thirds of what he left. If there are both brothers
and sisters, the male will have the share of two females. Allah makes clear to
you [His law], lest you go astray. And Allah is Knowing
of all things.[30]”
Once a Muslim
is dead, three questions arise; (a) who are possible successors[31];
(b) among these possible heirs, who are the actual ones[32],
entitled to inherit; (c) what are the shares of each actual heir[33]?
After going through above verses, following
rules are devised;
1. The
heirs can be classified into first category heirs and second category heirs. In
the first category following are included;
(a) Spouse i.e. husband and wife/s
(b) Children including son/s and daughter/s
(c) Parents i.e. father and mother
(d) Grandchildren i.e. son’s son and son’s
daughter only, only where the son is already dead.
While the second category of heirs include
following;
(a) Grandparents
i.e. both paternal and maternal;
(b) Brother/s
and sister/s, only where there is no father and son;
(c) Uncle/s
and aunt/s, only where grandparents of either kind missing;
(d) Nephew/s
and niece/s, only when brother/s and sister/s are absent.
2. The
respective shares of each are as below:
Husband:
With children ¼ and without any child[34]
hls ½
Wife:
Her share is 1/8 with children and ¼ without
any child. If there are more than one wives, they all
collectively get 1/8.
Daughter/s:
With the presence of son she gets ½ of the
son. Where there is only one daughter and no son, she gets ½ of whole property
and if there are more than one daughters with no son
the 2/3 of whole is divided equally among them.
Father:
Where child hls is present 1/6, with no male
descendant he gets 1/6 plus the residue and in case of no descendant who is
entitled to inherit he gets the residue.
Mother:
In the presence of children or brother/sister
(full, consanguine or uterine) she gets 1/6, in case of nobody i.e. children,
brother/s, sister/s, father and spouse her share is 1/3 and where father,
spouse, brother or sister exist, she gets 1/3 of residue.
Uterine[35] Brother/Sister:
Where there is no descendant (child or child
of a son) or ascendant (father or true grandfather) who can inherit and there
is only one uterine brother or sister then 1/6 is given to him or her, while in
case of more than one of such brothers and sisters, they all will get 1/3
collectively. However, in the presence of full[36]
brother/s or sister/s, these get share in residue.
Son’s Daughter:
She gets ½ when, there is no daughter/son and no son’s son, while in
the same situation if they are more than one, they share 2/3 equally among
them, however, with son’s son she becomes residuary.
Full Sister:
She can only get share in cases where no
child hls and no father, true grandparent hhs and full
brother are present[37].
She gets ½ and full sisters will get 2/3 collectively, while in the presence of
full brother, she becomes residuary. This becomes more complicated where,
female entitled descendant exists with no full brother, then the full sister
gets 1/6 and in case of more than one, they get 1/3 collectively.
Consanguine[38] Sister:
She is only entitled to inherit where there
is no child, no son’s son and father and no full brother/sister, true
grandfather and no consanguine brother and her share is ½ (in case of two or
more, they collectively inherit 2/3). However, if there is only one full
sister, she gets 1/6; with consanguine brother she becomes residuary.
True Grandmother[39]:
She only gets where there is no father or
mother or nearer true grandfather, her share is 1/6 (either one or more).
True Grandfather[40]:
He is only entitled to inherit where there is
no father or nearer true grandfather and his share is 1/6 where male descendant
(hls) is present, while in the absence of any male descendant he inherits as a
residuary.
Son’s Son’s Daughter:
She is only entitled to inherit when there is
no son/daughter, son’s son/daughter or son’s son’s son. But, where she
inherits, her share is ½ (or 2/3 collectively if two or more). However, when
there is only one daughter or son’s daughter, she (single or more,
collectively) takes 1/6.
Uncles/Aunts:
They include brother/s and sister/s of both
father and mother and are only entitled to inherit in the absence of all
sharers including grandparents. However, when they get share the ratio among
uncle and aunt is 2:1 respectively.
Nephews/Nieces:
They are children of brother/s and sister/s
and only get share in the absence of brother and sister alongwith all other
nearer heirs of first category. The ratio of distribution is the same for male
and female i.e. 2:1.
Under Islamic
law, if no will is made out, the whole estate of a deceased person devolves
on his heirs. As stated in Mitakshara,
a Hindu will get share in ancestral
property as a birth right, but that is not the case with Muslims. A good thing about the Islamic
law of inheritance is that it does not differentiate between different
types of properties, whether ancestral and self-acquired, whereas the Hindu law does. The ancestral property
inherited by a Muslim female becomes
her own property, while this is not the case with a Hindu female[41].
Likewise there are a few notable differences
between Shia and Hanafi law regarding inheritance: Shias only recognize nine sharers and Hanafis twelve. Shias
partially recognize rule of primogeniture (in hubua cases only), whereas this rule is totally discarded by Hanafis. Land can not be inherited by a
childless widow under Shia law, while
the same is a valid subject of inheritance for childless widow under Hanafi doctrines. The will in favor of a
legal heir is valid under Shia law
(upto 1/3), while it is not valid for a Hanafi
Muslim unless other heirs consent to it. Further, this consent in case of Shias can be given even before the death
of deceased, while the same is only valid if given after death of the
propositus, as per Hanafi law. Hanafi law is also different from Shafai law[42],
such as, under Hanafi law full
brother is always a residuary, while under Shafai
law he becomes sharer where other sharers are husband, mother and two or
more uterine brothers or sisters; Hanafi
law recognizes successors by contract and acknowledged kinsmen, while the same
is not recognized by Shafais; grandfather
excludes all brothers and sisters under Hanafi
law, while he shares with full and consanguine brothers and sisters under Shafai law.
Generally speaking, the Muslim law of inheritance provides complete and comprehensive rules
for the distribution of property among the legal heirs of a deceased Muslim. It is usually the lack of
understanding of this great area of Islamic
law, which not only confuses the man but also complicates fair distribution of
the estate. The tragedy being that the same text of the Holy Quran may be interpreted differently by
different Ulema-e-Deen and various
scholars of Islam. It must be kept in
mind that Sharia provides that
succession opens on death of owner of property and the legal heirs become
entitled to their respective shares in the property immediately and without any
condition[43].
Further as the rule, ‘a living person has
no heir’ applies under Muslim
law, a possible heir can not claim any share from the estate of a living
person. The reader must also keep in mind that disentitling somebody by
ostracism (aaq nama)
does not affect the entitlement for share as a legal heir after the death of
the person disowning. As far as sharers are concerned, as stated earlier, the Shia and Sunni laws are slightly dissimilar from each other. Nevertheless,
the diverse aspects of Muslim law of
inheritance have been discussed in this short study, with the aim that a
beginner will be able to understand them without much difficulty and once the
reader gets the general understanding of these aspects, he may resort to
classical works on inheritance for the broader understanding of the topic.
[1]. MA,
LLM (Cantab); Principal,
[2]. BR
Verma, Commentaries on Muhammedan Law, 10th ed. 2007, Law Publishers (
[3]. Only
upto 1/3rd
[4]. Professor
Almaric Rumsey (1825-1899), Moohummudan Law of Inheritance (1880), preface III
[5]. See
the Hadith, “Learn the laws of
inheritance and teach them to the people for they are one half of useful
knowledge”
[6]. See,
‘The Law of Inheritance in Islam’, available at www.muslimpersonallaw.co.za,
last visited on
[7]. Dr.
Abid Hussain, ‘Islamic Laws of Inheritance’, available at www.islam101.com
last visited on
[8]. See
www.muslimpersonallaw.co.za
last visited on
[9]. All
type of property whether movable or immovable; or ancestral pr self-acquired is
treated alike under Muhammedan Law
[10]. See,
2007 SCMR 635, also see, 2005 YLR 2882
[11]. Mirza
Bivi versus Vellayana, ILR 8 Mad 464
[12]. She
is not entitled to a share in land belonging to her husband and this land does
not include buildings or trees standing on it, she is entitled to share in
profit of these buildings and trees etc. the term land is not confined to
agricultural land only, it also includes site for buildings. Baillie states,
‘when the wife has had a child by the deceased, she inherits out of all that he
has left…’ see for details, BR Verma, pp-377, 378
[13]. If
he is of sound mind, he is entitled to inherit exclusively to the wearing
apparel, Quran, sword and ring of father, called ‘Hubua’, provided father has left other property too. See BR Verma,
p-378
[14]. BR
Verma, p-377
[15]. How
low soever
[16]. How
high soever
[17]. Either
alive as living person or janin/unborn
child provided live birth within six months of the death of the deceased
[18]. Such
as, apostasy, murder, step relations, illegitimacy etc
[19]. They
include; mother, father, husband, wife, daughter, full sister, uterine sister,
consanguine sister and uterine brother
[20]. It
must be noted that, father, mother, daughter, paternal grandfather, full
sister, consanguine sister and agnatic granddaughter some times also inherit as
residuary.
[21]. Although
son is not mentioned in the list of twelve, but when he is present few are
automatically excluded
[22]. Doctrine
of al-awl
[23].
[24]. See,
2007 MLD 800
[25]. Holy
Quran (Al-Nisa’) 4:7
[26]. Ibid
4:8
[27]. Ibid
[28]. Ibid
[29]. Ibid
[30]. Ibid
4:176
[31]. For
determining these, all rules regarding sharers, residuaries and distant kindred
are kept in mind alongwith acknowledged kinsman and universal legatee, thus a
lengthy list is prepared.
[32]. Now rules
of exclusion and nearer excludes farer are applied to narrow down the number of
possible heirs to actual ones.
[33]. Once
actual heirs are determined, the rules for allotment and adjustment of shares
are applied.
[34]. Term
includes sons, daughters, son’s son and daughter. However daughter’s children
are excluded
[35]. Mother
same but different fathers
[36]. Same
father and mother
[37]. It
must be kept in mind that the word “Al-Khalala”
used in Sura Al-Nisa verses 12 and
176 is differently interpreted by different jurists. Majority mean them, ‘ascendants and descendants’, while many
have given it the meaning, ‘father or son’
only.
[38]. Same
father, different mother
[39]. She
is the one whose chain of connection with the deceased is not interrupted by a
male between two females
[40]. He
is the one whose chain of connection with the deceased is not interrupted by a
female between two males
[41]. For
details, see BR Verma pp-394,395
[42]. Ibid.
p-810
[43]. 2006
MLD 47