Succession | Family Law - CLAT PG PDF Download

Muslim Law of Inheritance: An Overview

• The Muslim Law of inheritance is built on the foundation of pre-Islamic customary law of succession and the patriarchal structure of the family.
• In this legal framework, there is no division of property into separate categories, nor is there a reorganization of joint family property.

General Principles of Muslim Inheritance Law 

A. Customary Principles of Succession 

1. In pre-Islamic Arabia, inheritance excluded wives and children, favoring agnatic preference  and female exclusion  .

Four basic principles of pre-Islamic succession: 

• Nearest male agnate  succeeded to the total exclusion of remoter agnates (e.g., son excluded grandson).
• Females  were excluded from inheritance.
• Descendants  were preferred over ascendants, and ascendants over collaterals (e.g., in the presence of a son, the father could not succeed).
• Where there were multiple male agnates of equal degree, all inherited the property and shared it equally. 

B. Islamic Principles of Succession Developed by the Prophet 

1. Husbands and wives are equal heirs  , entitled to inherit from each other.

2. Certain near females and cognates  are recognized as heirs.

3. Parents and other ascendants  are made heirs even in the presence of descendants.

4. Newly created heirs  are given specified shares.

5. Newly created heirs  inherit specified shares along with customary heirs and not to their exclusion.

6.Customary heirs  act as residuaries.

Impact of the Koran 

• The Koran amended and modified customary law of succession  .
• The superimposition of Koranic principles on customary law has led to divergence of opinion  among Shia and Sunni sects.

The Hanafi Law: General Principles 

The Hanafi School of thought interprets principles of customary law and Islamic law in a way that harmonizes both. Under this approach:

• Customary heirs are not entirely deprived of their shares but have their portions reduced to accommodate Koranic shares.
• The basic structure of agnatic preference is maintained, with Koranic succession incorporating agnatic principles while recognizing the rights of female agnates.

Distribution Rules 

• If a Koranic heir is closer to the deceased than a customary heir, the specified portion is given to the Koranic heir first, with the residue going to the customary heir.
• If Koranic and customary heirs are equally near to the deceased, the customary heir receives a double portion.
• The general rule for distributing the estate is per capita, not per stirpes.

Doctrine of Representation and Stirpital Succession 

• Hindu law recognizes both the doctrine of representation and stirpital succession.
• The doctrine of representation serves two purposes:
  • Determining the heirs.
  • Determining the share of an heir or a group of heirs.
• The per stirpes rule means that when there are branches, the division of property occurs according to stock at the points where branches bifurcate.

Doctrine of Representation and Share Distribution Under Hanafi Law

Doctrine of Representation

• All grandsons will inherit alongside sons.

Share Distribution Under Hanafi Law

• Only sons inherit, not grandsons.

Hanafi Law of Inheritance 

Overview of Heirs and Their Shares

• Heirs / Sharers: 
  1. Spouses
  2. Sons / Son’s Sons (how low so ever)
  3. Father & Mother
  4. Others mentioned below
• Residuaries:  In the absence of sharers and residuaries, the estate passes to distant kindred/uterine heirs.
• Heirs of a deceased Muslim male/female fall under:
  1. Sharers
  2. Residuaries
  3. Distant Kindred
  4. State Lay Escheat

Sharers 

There are 12 sharers as follows:

• Relations by Affinity: 
  1. Wife
  2. Husband
• Relations by Blood: 
  1. Female Agnatic Descendants
  2. Daughter
  3. Son’s Daughter (how low so ever)
• Female Agnatic Collaterals: 
  1. Full Sister
  2. Consanguine Sister
• Cognatic Collaterals: 
  1. Uterine Brother
  2. Uterine Sister
• Female Ascendants: 
  1. Mother
  2. True Grandmother
• Male Ascendants: 
  1. Father
  2. True Grandfather

Distribution of Assets Among Sharers and Residuaries

• Class I and Class II heirs share together.
• Nearer heirs exclude remoter among residuaries.
• Descendants are preferred over ascendants and collaterals.
• When all heirs are equally near, they share equally, with the rider that a male heir takes double that of a female.

Illustration 

1. A Muslim man passes away, leaving behind a widow (W), sons (S), and daughters (D).

2. P dies leaving behind daughter D, son’s daughter SD and son’s son’s daughter SSD and Son’s son’s son SSS

3. P dies leaving behind 2 daughters D and Dl, and son’s daughter SD and son’s son’s son SSS - then both D and Dl will get 2/3, SD and SSS together get 1/3 i.e. SSS will get 2/9 and SD will get 1/9
4. P dies leaving behind his father F and daughter P - then father gets 1/6 as sharer and 1/3 as residuary whereas daughter gets 1/2 as sharer
5. Muslim female died leaving behind her husband H, mother M, two uterine brothers UB and UB1 and one full brother FB then husband get 1/2 as sharer, mother get 1/6, full brother becomes residuary and uterine sisters will not getting anything.
6. P dies leaving his mother M. two son’s and Si and daughter D.

7. P dies leaving behind 2 daughters D & Dl, don’s son S S and son’s daughter SD

8. P dies leaving behind & daughter D & Dl son’s son’s son SSS, son’s daughter SD and son’s son’s daughter SSD then D and Dl together get 2/3, SSS, SD and SSD are the residuaries, son get double to daughters hence SSS get 2/12, SD get 1/12 and SSD get 1/12.

Doctrine of Aul (Increase) and Radd (Return) 

In a legal system that allocates fixed shares to heirs, unusual situations can arise where the total shares assigned either exceed or fall short of the whole.

Doctrine of Aul (Increase) 

• When the total of the shares assigned to various heirs according to their entitlements exceeds 1 (the whole), the Doctrine of Aul comes into play. This doctrine stipulates that the share of each heir should be proportionately reduced.
• The reduction is achieved by adjusting the fractional shares to a common denominator, hence the term "Aul," which means increase.

Example:  Consider a scenario where P dies leaving behind her husband, full sisters FD & FD1, and mother M. If the shares allocated to each of these heirs according to their entitlements add up to more than 1, the Doctrine of Aul would apply to proportionately reduce each heir's share.

Doctrine of Radd (Return) 

• When the total shares assigned to various heirs are less than 1, the Doctrine of Radd comes into play.
• In this situation, the shares of the heirs are increased to ensure that the total equals 1.

Example of the Doctrine of Radd 

• If the total shares allocated to the heirs add up to less than 1, theDoctrine of Radd  is applied to increase the shares proportionately until they collectively equal 1.

Purpose of the Doctrines 

• Thedoctrines  help in resolving anomalies and ensuring a fair distribution of shares among heirs in accordance with their entitlements.

Proportionate Reduction in Share 

• Proportionate reduction in share is achieved by increasing the denominator from 6 to 8  .
• Hence, H=3/8  ,M=1/8  , andFD & FD1=4/8  .

Legal Heirs of P 

P dies leaving behind the following legal heirs:

• Husband (H) 
• Full Sister (FD) 
• Uterine Sisters (MD and MD1) 
• Uterine Brothers (MS and MSI) 
• Mother (M) 

P dies leaving behind mother M, father F, wodow W and three daughters.

Doctrine of Radd (Return) 

The Doctrine of Radd, or Return, comes into play when there is a surplus left after shares have been allotted according to the rules. If there are no residuary claimants to take the surplus, this doctrine states that the surplus should be distributed among the sharers in proportion to their respective shares.

Key Points: 

• If a husband and wife are not entitled to the return of surplus as long as there is a sharer or a distant kindred alive, the surplus will go to them only if there are no distant kindred.
• For example, if P dies leaving behind his mother (M) and his daughter (D), the distribution would be as follows:
• M:  Initially entitled to 1/6, which increases to 1/4.
• D:  Initially entitled to 1/2, which increases to 3/6 (or 1/2). This is calculated by finding the remaining share after M's share is accounted for.
• Calculation for D's share:
  • 1 - (1/6 + 1/2) = 1 - (1 + 3/6) = 1 - 5/6 = 2/6.

Example: 

• P dies leaving behind his mother (M) and his husband (H).
• Using the Doctrine of Radd, the surplus would be distributed based on their respective shares, considering the presence of distant kindred.

M dies leaving behind wife only get l/4th share and 3/4 as return. 

Distant Kindred (DK) 

• In the absence of sharers and residuaries, the estate devolves on DK only when there are no other claimants.
• DK inherits along with sharers when the only surviving sharer is a husband or wife, and there is no residuary.
• In such cases, the husband or wife takes their share, and the rest goes to DK.
• DK includes female agnates and cognates (both male and female).

Classification of Distant Kindred (DK) 

Distant Kindred (DK) is classified into different categories for the distribution of assets. However, the specific categories are not provided in the given text. Generally, DK includes various relatives who are more distantly related than sharers but still have a claim to the estate under Islamic law. These may include cousins, aunts, uncles, and other relatives who do not fall into the category of sharers or residuaries.

Rules of Distribution 

• Descendants are preferred over ascendants, and ascendants are preferred over collaterals.
• When all claimants are descendants:
• If all descendants have the same degree of descent, the children of sharers and residuaries are preferred over the children of distant kin (DK).
• If there is a mix of claimants, descendants (DD) and descendants of sharers (DS) are preferred.

Order of Preference Among Descendants 

• Daughter's Children 
• Son's Daughter's Children 
• Daughter's Grandchildren 
• Son's Son's Daughter's Children 
• Daughter's Great-Grandchildren 

Claims of Equal Degree of Descent 

• Per Capita Distribution:  If claimants are of the same degree of descent and the sexes of intermediate ancestors are the same, all claimants receive equal shares, with males receiving double portions.
• Example:  If P dies leaving a daughter’s daughter (DD) and a daughter’s son (DS), DD will receive 1/3 and DS will receive 2/3.

Different Sexes in Intermediate Ancestors 

• When the sexes of intermediate ancestors differ, stop at the stage where the sexes differ and assign shares at that stage, giving double portions to males and single portions to females.
• Example:  If P dies leaving a daughter’s son’s daughter (DSD) and a daughter’s daughter’s son (DDS), and the sexes in the first line of descent are the same, DS receives 2/3 and DD receives 1/3. Therefore, DDS receives 1/3 and DSD receives 2/3.

Ascendants 

In the absence of descendants, the property will go to distant kindred, and then to ascendants.

• Mother's Father:  The nearest ascendant, such as the mother's father, will inherit the entire estate.
• False Grandfather/Grandmother:  If the mother's father is unavailable, the estate will devolve on the false grandfather or grandmother.
• Third Degree Ascendants:  If the false grandfather or grandmother is also unavailable, the estate will devolve on third-degree ascendants.

Collaterals 

• A claimant who is nearer in degree excludes those who are remoter.
• Among claimants of equal proximity, the children of residuaries are preferred over distant kindred.

State as Heir by Escheat 

• Subject to any trust, charge, or liability affecting it, the State can become the heir to the property of a deceased individual.