This article is written by Adv. Devshree Dangi. It talks about the doctrines of Aul and Radd in Muslim inheritance law. It also discusses the classification of heirs under both the Sunni and Shia law. This article primarily focuses on the concept of the Doctrines of Aul and Radd and their applicability to Sunni and Shia laws with examples. It also analyses the exceptions as to the application of the Doctrine of Radd in both Shia and Sunni law of inheritance. It also mentions various landmark judgments on the applicability of the Doctrines of Aul and Radd and their impact on the subsequent case laws. 

Introduction     

The Muslim law of inheritance is undoubtedly none less than a systematic and interesting strategic system developed for the distribution of the property of the deceased. Based on religious doctrines, this method of division guarantees equity since different proportions of the estate are distributed to all the beneficiaries. Every heir’s share is predetermined, which, once again, acts per the Islamic concept of justice and equality. However, one of the main concerns that arises with the actual implementation of these inheritance rules is the fact that they are often not easy, especially when the total of the fractions defined adds up to more or less than unity. As a result, to manage these differences and to ensure the equilibrium as is envisioned under Islamic law, two doctrines; Aul and Radd are used. 

Whenever the fractions of the estate to which the heirs are entitled add up to more than the total value of the property, the doctrine of Aul comes into force. In such cases, each of the heirs receives less than the calculated share of the total assets to reflect the general formula of the distribution in a bid to ensure that the overall value does not transgress the estates available, hence keeping the integrity of the division intact. On the other hand, the doctrine of Radd, whereby if the total of fraction portions is less than the estate, then is a reduction allowed. This doctrine provides for the distribution of balance to the other eligible heirs so that all the property of the deceased is distributed and none is left undivided. Thus, they are both essential in the management of the complexity of the Muslim inheritance laws and in ensuring that the distribution of an estate as the Islamic Shariah prescribes is just as well as accurate. 

Background : Islamic inheritance law

Muslim inheritance law is based on the Quran and the Sunnah of the Prophet of Islam. There are realistic rules including the Quran verses which precisely state shares given to the different categories of heirs including spouses, children, parents, and siblings concerning shares of the deceased out of the total property to be divided. Additionally, the Sunnah which contains the sayings and actions of the Prophet adds to these Quranic guidelines by offering contextual details and expanded details on the practices of inheritance. Although the rules are well defined, computational difficulties occur when the sum of the allocated portions does not equate to the total. This causes either under distributions where the shares are less than unity or over distributions in the form of shares higher than unity for the estate. These problems coupled with those of distribution lead to the application of the principles of Aul (augmentation) and Radd (return) in Islamic law. Aul is used when the combined share an heir is to receive is more than the value of the estate; hence the shares are adjusted proportionally. On the other hand, Radd occurs when the sum of the shares does not exceed the value of the estate and the extra amount is distributed in the ratio of eligibility of the heirs being in proportion to the share. Such doctrines are meant to maintain equity and justice in the process of inheritance under Sharia law. 

Download Now

Equitable distribution in Muslim inheritance 

The Islamic law on Inheritance is stringent to foster a purposeful and well-thought-out plan of distributing deceased’s wealth among the bonafide inheritors. This framework involves predetermined shares of all the categories of heirs as provided under the holy Quran and the Sunnah. However, some circumstances may lead to a situation when these predefined shares are not the most suitable numbers for the total estate and may cause a potential deficit or an excess. The doctrines of Augmentation (Aul) and Reduction (Radd) are used as the main tools to tackle these differences and bring fairness to sharing. 

Sources of Muslim inheritance law

Primary sources 

Islamic inheritance law is founded on two primary sources: the Quran and the Sunnah. These sources are combined with other principles and methods to guarantee that all the assets of a deceased person are divided in a wider and fairer manner. 

Inheritance under Muslim law is primarily based on two key sources:

  • The Quran: The Quran establishes the general principles of inheritance by stating the portions that are to be given to different categories of heirs. These shares are described in fractional terms on the deceased’s estate; this way it is more systematic and accurate. 
  • The Sunnah: In matters related to the practices of inheritance, the Sunnah which is the set of traditions and practices as elucidated by Prophet Muhammad affords further details and clarifications that are not otherwise provided under the Quran. Additional details concerning the shares and the modes of distribution are in the hadiths (sayings and deeds) of the Prophet. 

Supplementary sources 

  • Ijma (consensus of scholars): For centuries, the practice of Islamic jurists reaching a consensus on certain matters of inheritance has been incorporated into the overall area of Islamic law. Ijma, the practice of reaching a collective agreement on a sophisticated matter of law is useful for formalising peoples’ inheritance disputes by giving authoritative interpretations and rulings over scholarly consensus. 
  • Qiyas (analogical deduction): As for the Islamic legal rules that are not categorically a part of either the Quran or the Sunnah, jurists use a process called Qiyas, which is the determination of relative similarity. Thus, Qiyas compares new circumstances to previous principles to preserve the objective of inheritance laws and make them applicable to current issues. 

Key principles of inheritance 

Predetermined shares

All percentages of the estate that the Quran and Sunnah decided to give to the varied categories of heirs are conservative. These shares are fixed before they are equally distributed. Key heirs include: 

  • Spouses: It has been noted that a husband or wife would receive a certain portion of the estate according to the legal rules and in this case, the variations would arise where there were other competitors for the estate. 
  • Children: As for the sons and the daughters they inherit portions of the property and as a rule in the patrilocal culture, the sons get a double portion as the daughters. 
  • Parents: The mother and the father of the deceased are the holders of guaranteed shares. 
  • Siblings and grandparents: They also have a fixed portion in the degree of inheritance in case there are no other close relatives. 

Residuary estate 

The primary heirs have taken the portions assigned to them, and any of the remaining parts of the estate, which is termed the residuary estate, go to the residuaries (distant relatives). It concerns how closely one is related to the dead person, including all possible claimants to inheritance. The residuary estate means part of the estate left after the distribution of the shares to the principal beneficiaries is made. 

They are mostly the successors in the close relationships with special proportions envisaged by the Sharia law. The residuary estate is then inherited by more distant relations who are referred to as residuaries. The process of arriving at the residuary estate proves very tedious in that it identifies every person who may have any claim on the inherited wealth in the light of the kinship of the deceased. This entails the elimination of beneficiaries based on likely relationship with the deceased by undertaking the family and ancestral background study. 

Debts and funeral expenses 

Before any distribution of inheritance can take place, there may be burial and funeral expenses as well as the debts of the deceased to be paid. This principle stresses that all the monetary responsibilities should be met before the remaining property is partitioned among beneficiaries. As a general rule, before the distribution of the estate of the deceased, all the lawful debts owed by the deceased must be paid. This includes funerals, which are regarded as one of the first charges on the estate. Further, any balance of the accounts like the loans, credit card bills, medical bills, and many others must be paid from the estate monies. Before, though, and after the payment of all such liabilities the process of distribution of the property amongst the beneficiaries can begin. 

Gender equality in Islamic inheritance 

It should be noted that there are certain provisions of the shares of the male and female heirs, but it is noteworthy that Islamic inheritance law provides equality between men and women. As for the right to inheritance, it is equal for both men and women, nevertheless, the share could be different depending on the family role of the persons. 

Nonetheless, it should be pointed out that Islamic inheritance law does differentiate between male and female heirs as to the rights to shares but now it is crucial to stress the equality of the right to inherit. It is important to note that both men and women have a right to inherit the property of a deceased individual. However, the actual portion that goes to each inheritor depends on such effects as the closeness of the relationship with the deceased, the gender of the heir, and other facets as outlined under Islamic law. 

To eliminate any misunderstanding, it is important to note that the differentiation between shares given to male and female heirs follows the legal principles set down and thus there is no discrimination of any kind. The law seeks to distribute the estate among all the rightful beneficiaries with full regard to the law on how to make that distribution as fair as possible to all the beneficiaries and according to some factors.

Universal heirship and bequests

In Islamic law based on Quran, there is no provision for the modern concept of “will”. However, within certain conditions, a Muslim can make gifts (bequests) as a part of the will. They cannot take more than one-third of the estate and cannot reduce the shares of the primary heirs agreed upon. The doctrines of Aul and Radd further ensure fair distribution:

  • Aul (Augmentation): Used in situations whereby the total fractional shares exceed the estate, in such a case each of the shares is adjusted proportionately. 
  • Radd (Return): Used when the total shares are less than the estate so that the remaining share can be given to the heirs. 

Each of the four principles in Islamic inheritance law is clear, unambiguous, and divine; the remainder consists of scholarly consensus and analogical reasoning to prevent unfair and unjust distribution of a person’s possessions after their death. This way, the system of pre-determined shares does not lose its integrity and fairness in different circumstances: restoring the balance by repaying debts and expenses, the actions are based on the doctrines of Aul and Radd. 

Classification of heirs under Muslim law

In Islamic inheritance law, under both Sunni and Shia laws, heirs have different classifications depending on their category or the closeness of relation to the deceased and the amount of share they are allowed to inherit from the deceased’s property. They are divided into two types; classes of sharers and remaining classes or residuaries. 

Class I heirs: Class I heirs are those people who under the Quran are entitled to a particular share in the estate. It consists of close relatives like the widow, husband, daughter, son, son’s daughter, full sister, consanguine sister, uterine sister, uterine brother, mother, and father. To such people, priority is given as to the distribution of the estate since their shares are also enumerated in the Islamic jurisprudence depending on their closeness and the importance of the figures in the family structure. 

Class II heirs: Class II heirs are the residuary who only inherit the remaining property after the rest of the property has been divided among the Class I heirs. This class is also classified into Quranic residuaries and other residuaries or general residuaries. Sharers according to the Quranic provisions are those who were originally residuary but are demoted to share because they must yield to a higher degree of residuary. These heirs may consist of some of the closer family members who if there are no other heirs then take over the process of inheriting the residual of the estate. General residuary are those, other than the specific ones, who have no fixed share, but share the remainder of the estate after the specific sharers have been provided for; these are the ascendants, descendants, and collaterals who are related to the deceased by blood but do not have a share in his estate as per the shariah law but get the remaining share. 

Class III heirs: Class III heirs refer to other relatives, which are considered to be distant relations. These heirs are all taken into account when there is no sharer or residuary co-heir to take the estate. This class comprises people who have a genetic link with the deceased, but they are not close to him/her in the order of succession. The distribution, also within this class is done in proportion to the degree of consanguinity, the nearer relations being preferred to the more remote ones. This system of inheritance in Islamic law maintains order in the distribution of the assets of the deceased since it is prescribed in Islamic law to cater to all the next of kin, not only the immediate family. 

Doctrine of Aul and Radd

The doctrines of Aul and Radd ensure a fair and balanced distribution of the deceased’s estate by adjusting the predetermined shares of the heirs in specific situations:

  • Meaning of Radd (Return): If the sum of the predetermined shares of all the heirs is less than the unity total estate then the remaining amount is distributed in proportion to the predetermined shares. This makes it possible for all the rightful beneficiaries to be awarded the due share as per their entitlements. 
  • Meaning of Aul (Increase): On the other hand if the total of the predetermined shares of all the heirs sum up to more than unity (the total estate) then the excess is split back to the sharers in the ratio of their predetermined shares. It ensures that none of the heirs inherits more than what he or she is supposed to receive. 

Doctrine of Aul (Augmentation) 

It states that if the total of the fractional shares attached to the heirs surpasses the total of the estate, then the doctrine of Aul is used. This position requires an equal percentage reduction of each of the heirs’ shares aiming at ensuring that the total amount to be given as an inheritance does not exceed the actual value of the estate. Aul also makes it possible for every legal heir to get a little portion of the deceased’s belongings, although their portions may be minimised. This principle has always been upheld to maintain the Islamic legal structure for the division of assets. 

For example, if there are different heirs and the total shares distributed among those heirs are over 100% of the value of the estate, all kinds of shares are reduced in proportion to make them equal to 100%. This adjustment process is important to ensure fairness and that none of the heirs are overly benefited. 

Doctrine of Radd (Return) 

On the other hand, the doctrine of Radd is applied in a situation where the fractions that are acquired jointly amount to less than the total property. In such cases, the balance of the property goes to the qualified heirs in the manner and portion in the same proportion as their stipulated shares. This makes it possible to complete the distribution process without those present not getting anything as it happens in other situations. Further, this doctrine applies only when there are no residuries.

For instance, if all of the assigned shares are less than 100% of the entire estate, the balance of the estate goes back to those heirs in proportion to their share. Thus, this mechanism is effective in distributing all the estates just and fairly as per the principles of justice that are being followed in the Islamic law of inheritance. 

These two doctrines of Aul and Radd have a significant role in the Muslim inheritance system; the actions that sometimes may occur in the distribution of inherited shares if the sum of these shares is not equal to the total of the estate. By these doctrines, Islamic law ensures that the distribution of an estate is correct, proper, and fair because it is the standard of the Quran and Sunnah. A kind of practice that is helpful when establishing the degree of complication in the Islamic inheritance law, together with the practicality needed to serve each inheritor following the religion’s provisions. 

For instance, sharers such as wives and sisters receive 1/4 (one-fourth) and 1/2 (one-half) of the property respectively. Combining these shares, we get a 3/4 (three-fourths) fraction which is less than unity (1). Therefore, the remaining 1/4 (one-fourth) share is known as the residue. If there are no residuary heirs, this share by the application of the Doctrine of Radd will be distributed among the sharers again.

The Doctrines of Aul and Radd can only be invoked on the part of the estate being left over after applying all the expenses including funeral and debts of the deceased. 

Application of Aul in Sunni and Shia inheritance law

Sunni law

Applicability: The doctrine of Aul (increase) is invoked in Sunni inheritance law where all the portions of all primary sharers (the totality of inheritance) exceeds unity (1). This can be the case after paying off debts and funeral expenses have been met. Namely, Aul responds to the case in which the total of the allocated shares equals more than one hundred percent of the estate. 

Adjustment process: When Aul is used in the beneficial distribution, what is left is distributed to the principal beneficiaries in a way that scales up their shares so that the total of their shares is 100 percent of the remaining estate. Their portions are, therefore, reduced in proportion to the amount of the original divisions given to each heir. This proportional adjustment assists in making provisions for every property in the estate without leaving any property unprovided and also assists in making provisions for the fairest way of providing an heir by changing the share ratio according to the initial ratio provided to every heir. 

For example: 

A deceased leaves behind a husband (entitled to ½ share) and two full sisters (both jointly entitled to 2/3).

  • Combined shares: Husband (1/2) + Sisters (2/3)= 7/6.
  • Deficit: The total shares exceeds unity (1) by 1/6.
  • Aul applies: The shares of the husband and sisters will be reduced and the sum reduces to unity (1), ensuring all receive their due inheritance.

Shia law

Different from the Sunni law, the Shia inheritance law does not incorporate the doctrine of Aul. The Shia jurisprudence has several mechanisms tackling the issue of shares adding to more than unity. Thus, the Aul is not used to proportionally reduce the shares of the heirs when their combined predetermined shares is more than the estate. 

Rather than applying Aul, Shia law reduces the division of shares of certain heirs such as daughters and sisters categorised as one who is entitled to a share but whose share is not specified. This reduction helps in making the total of the various shares equal unity. Shares that are fixed concerning certain heirs such as parents, spouses, or children are not changed by this and are kept as fixed shares. The reduction process specifies general principles applying to the overall distribution of inheritance while not using Aul. 

Aul is generally not applied in Shia law when the shares of the heirs add up to 90 percent of the estate.  Under Shea law, the shares of the primary heirs, like, the mother, father, and the spouse are normally constant. This is different from Sunni law wherein Aul is used more often to make the shares total as unity. 

Sunni law utilises Aul to reduce shares in a situation when the total is more than the estate proportionately. Shia law, in contrast, does not apply Aul and uses it to modify the shares of non-fixed shares of certain heirs to keep the shares of the predetermined heirs from being decreased while also making the total distribution fair and just. 

For example:

The deceased leaves behind a husband (1/4), daughter (1/2), mother (1/6) and father (1/6). 

  • Combined shares: husband (1/4) + daughter (1/2) + mother (1/6) + father (1/6)= 13/12. 
  • Surplus: Thus, it is, consequently, evident that the total shares is more than 1 or unity by 1/12. 
  • Shia Law approach: Instead of applying Aul, Shia law adjusts the proportion by reducing the share for the daughter so that the sum of the shares is equal to unity. Therefore, the share of daughter is reduced by 1/12, making their new share 5/12.

Application of Radd in Sunni and Shia inheritance law

Sunni law

Within Sunni inheritance law, the doctrine of Radd is applied when there are no residuries. This means that there is no one to inherit the balance that would have been left in the estate of the deceased in the event all his or her liabilities and burial expenses have been met.

Here’s how Radd functions in Sunni law:

  • Identification of surplus: The first action is to add together all of the predetermined shares that are distributed to the heirs. In other words, if the sum is less than unity, then a surplus is present.
  • Proportionate distribution of excess: The amount arrived at in the previous step, is then proportionally distributed back to the sharers, as the excessive amount. 
  • Unaffected Residuaries: However, it is crucial to understand the fact that Radd is only applicable among the sharers whose shares are predetermined. In cases where residuries are present, then all the leftover property is inherited by them and Radd does not apply. 

For example:

Consider a scenario where a deceased individual leaves behind a wife (entitled to 1/8th share) and a daughter (entitled to 1/2 share), and no residuries.

  • Combined shares: Wife (1/8) + Daughter (1/2)l = 5/8 
  • Surplus identified: The total of the predetermined shares, which is 5/8, is less than unity, that is there is a surplus of property by 3/8. 
  • Application of Radd: The surplus 3/8 is then proportionally distributed back to the wife and daughter in the same ratio as their original shares. It means the wife’s adjusted share will be 1/8 + [(1/8) / (5/8)] × 3/8 = 3/16. The daughter’s adjusted share becomes 1/2 + [(1/2) / (5/8)] × 3/8 = 9/16. 

Shia Law

In the same way, the Shia inheritance law also applies the Doctrine of Radd in case the total predetermined shares of the sharers are lesser than unity. However, because the heirs are divided into two categories, one who is entitled to share and the close relatives, and because of differences in various Shia schools of thought, the Radd practice is not completely uniform but majorly similar. 

  • General principle: Thus, it can be noted that the excess amount identified under Radd is also proportionately restored to the sharers in the Shia law. 
  • Variations across schools: However, a few Shia schools, such as the Ja’fari school, have specific criteria to determine whose shares can be proportionally reduced through the application of Radd. 

Exceptions as to the application of Radd in Shia and Sunni law

The principle of Radd or return under the Shariah laws of Inheritance also deals with the other leftover property after the distribution of the designated shares or faraids to the respective heirs. If there are no residuaries provided for, the residue goes back to the fixed share beneficiaries and is divided among them according to the share they were given. 

However, both the Shias and the Sunnis have different approaches to the implementation of Radd with certain modifications in Sharia law. 

Shia Law 

The application of this rule is in special circumstances of the Shia law when there is no chance of the residuary heir and the remainder of the estate is divided in the proportion of the fixed-share heirs. However, there are specific exceptions to this doctrine in Shia law:

Exception relating to husband and wife: 

  • Husband: The husband cannot claim Radd at all if there are remainders after the distribution of shares to the other heirs because other heirs can be even remote. The older Muslim jurists also have their opinion regarding the residue of the deceased’s property, that in case of absence of an heir, it should be the husband’s share. 
  • Wife: Contrary to the above, the wife is not treated in the same way. Hence, it used to be believed that, if there were no residue, the remaining value did not belong to the wife, but it would go to the State. However, the Oudh court later on adopted the view that if there are no other legal heirs, the residue goes to the wife. This is said to be a fairer way of dealing with the matter but it is not endorsed by all and other courts may or may not uphold this decision. 

Exception relating to mother’s share 

This exception is applicable in a situation where an intestate Shia had died leaving behind a mother, father, and one daughter as well as two or more full or consanguine brothers or one such brother and two such sisters or four sisters. Here, the brothers and sisters, who are of Class II heirs and are otherwise excluded from inheritance, influence the mother’s right to Radd. 

Example: In the case where a Shia dies leaving behind a mother(M), father(F), daughter(D), and two full brothers where the brothers are of class II they are in effect, stripped of their legacy. However, if any amount remains after the distribution of the estate then the residue will also belong to both the father and daughter but the mother cannot take Radd. Therefore, the father will receive 5/24 of the sum, the daughter will be able to receive 15/24 of the sum, whereas the mother retains the right to receive 1/6 of the sum. 

Exception relating to uterine brothers and sisters

If a Shia dies he leaves behind uterine brothers and sisters and full sisters and if Radd is to be claimed the uterine siblings have no right to it. This residue is rather returned to the full sister. 

For instance, if a Shia left behind a uterine brother, a uterine sister, and a full sister, the shares are 1/6 for UB, 1/6 for US, and 1/2 for FS. If the balance is in the ratio of 1/6 then this balance is taken by FS from Radd and in this case, the portion of the Radd is 2/3, and UB with US is 1/6. 

Example: If a man dies a Shia he leaves a uterine brother (UB), a uterine sister (US), and a consanguine sister (CS) then each of them takes one-sixth of the estate, UB gets 1/6, US gets 1/6 and CS gets 1/6. Another 1/6 was shared between UB, US, and CS which were in proportion with each other with all three receiving equal portions of 1/6. 

Sunni Law 

Under Sunni law, the principle of Radd is generally applied when there is no one else entitled to the residuary in the event of distribution of the said fixed shares, the surplus is then distributed among the holders of fixed shares in proportion. However, there is one exception to this rule. Subsequently to identify whether after all assets have been divided based on the fixed shares in case there is any residue left to be divided and no residuary shall have any further right to receive that residue, the fixed share beneficiary shall be the entitled person. However, by use of Radd, the spouse (either husband or wife) cannot derive any benefit in case he/she has been awarded a higher share. 

The share which the spouse still gets prescribed by some portions whereby the law offers the spouse with 1/4 for the husband if there are children, 1/2 if not; 1/8 for the wife, if there are children, 1/4 if no children. This exception makes it possible that through Radd, other heirs get benefits from the surplus but the amount should not exceed the share of the spouse which has been prescribed initially so that the differences in the spousal rights and blood relations in terms of distribution of the share would remain quite clear and distinguishable. 

The role of lawyers 

Here, it should be noted that the Sunni, as well as Shia laws about inheritance, emphasise all kinds of debts and funeral expenses to be paid before the division of estate and application of Aul or Radd. Further, these doctrines apply mostly when there are multiple beneficiaries, the shares are not equal and may require computation.

The process of inheritance especially when there is room for Radd can be rather challenging and legally protracted for the two involved parties; it is, therefore, advisable to seek the services of a lawyer in inheritance law. These people have all the necessary data and legal understanding of the specific legal system (Sunni or Shia) that may allegedly deal with the case and can give the right advice. Thus, a subject is steadily exposed to the existence of such an institution as Radd, and informed about the potential usage of this institution in Sunni as well as in Shia law, providing justice and the adequate legal rights of the legally entitled beneficiaries.

Landmark cases 

Indian courts have played a vital role in interpreting and applying the doctrines of Aul and Radd in various inheritance disputes. Here are few notable examples that highlight the application and limitations:

Sher Mohd vs. Smt. Khadija (2012)

Facts

In the case of Sher Mohd vs. Smt. Khadija (2012), the plaintiff filed a suit for a permanent injunction to give 1/3 share in the property situated in Delhi where an oral partition was made between the plaintiff’s father, Late Sh. Abdul Sattar, and the defendants’ father. Under the partition, some portions went to each father, and when Sh. Abdul Sattar died, a civil suit was initiated and disposed of in 2000 enjoining the plaintiff from creating third-party rights in the specified property. Sh. Abdul, the defendant’s father, passed away in December, 2005 and was a Muslim by religion but did not leave a will or testament. Where a person leaves only daughters as heirs, they take two-thirds of the estate whereby the one-third is distributed amongst the residuaries. The plaintiff left the claim of his share as residuary in the court action. The defendants, who the plaintiff accused of being dishonest, were attempting to sell the plaintiff’s share, hence leading to the legal action. 

Issues

  • Whether the plaintiff has the chance to sue for a 1/3 share in the suit property under the torts law?
  • Whether the doctrines of Aul and Radd or any other Muslim inheritance law support the grounds of the plaintiff?
  • Whether this suit for a permanent injunction is maintainable when a declaration of title is not sought? 
  • Whether the suit is barred under Section 41(h) of the  Specific Relief Act, 1963 on the ground of another remedy is available that is of equal efficacy?

Judgment 

The Supreme Court found that the plaintiff’s suit for permanent injunction was dismissed to the extent of the failure to make out a prima facie case as to the alleged 1/3 stake in the suit property. This is because the plaintiff failed to provide sufficient evidence that could enable the court to deduce that the deceased, Sh. Abdul has no other next of kin apart from the defendants and this is advantageous under Muslim law of succession. Besides, the plaintiff’s argument based on Aul and Radd was wrong without first establishing the nonexistence of other heirs. Based on the legal rules set under the context of an injunction, if there is no prima facie case, issues of balance of convenience and contempt of court due to the perpetration of an irremediable wrong do not arise. Further, the present suit is also legally settled improperly and it seeks only an injunction without praying for any declaration regarding the title of the property violating the provision Section 41(h) of the Specific Relief Act, 1963. Thus, the fact that the plaintiff has not availed himself of an equally effective remedy by seeking a declaration of his title, the suit is in effect non-maintainable. 

Nasrulla vs. Zaffrulla Khan (2016)

Facts 

In the case of Nasrulla vs. Zaffrulla Khan (2016), the plaintiff and defendants are descendants of the deceased Mr. Abdulla Khan and are both his heirs through his estate, which he left after he died intestate on 27-12-1991, the remaining members of his immediate family include his wife, Smt. Zahara Begum. Smt. Zahara Begum later passed away, leaving behind her children: while the first defendant is Zaffrulla Khan, the first plaintiff is Mr. Nasrulla along with Mr. Habibulla Khan as the first defendant and a daughter Nasema Begum as the third defendant. The first child and son of the hereby complainant, namely Mr. Habibulla Khan died on 9-9-1983 without any marriage. The 2nd defendant is the wife of the 1st defendant and daughter-in-law of the appellant/respondent, Mr Abdulla Khan and Smt Zahara Begum. Originally, the scheduled property was owned by Mr. A. A. Razak transferred the same to his wife, Mrs S A Razaak, as a gift willingly on 10-11-1961. Later, Mrs. S. A. Razaak bequeathed the property to Zahara Begam as there was no mention of precise boundary details of the property.  The dispute was heard about the ownership and partition of this property, rendered by both the brothers. 

Issues 

  • Whether the plaintiff Nasrulla has a legal right to share in the property of the dead man according to the Islamic law of inheritance. 
  • Impact of Aul (Increase) and Radd (Return) on the distribution of the shares of inheritance. 
  • Whether the plaintiff proved his/her case to the extent of the relief sought, namely a permanent injunction to restrain the defendants from dealing with the subject property.

Judgment

The Supreme Court stated that the plaintiff’s suit for a permanent injunction was that his case did not prove a prima facie case. The court also held that the plaintiff failed to offer sufficient evidence that he deserved a share of the property as per Shariah law on succession. Namely, the plaintiff did not provide the evidence to prove that Mr. Abdulla Khan had no other beneficiaries except for the persons in question. However, it was never convincingly demonstrated how and to what extent the doctrines of Aul and Radd apply when the said shares are claimed. Due to the failure of the plaintiff to demonstrate a cause of action that could warrant a leap into substantive jurisdiction, the issues on balance of convenience and issues of irreparable loss were considered irrelevant. Moreover, it was practically condemned for procedural impropriety as the suit sought only an injunction without a declaration of title in breach of Section 41(h) of the Specific Relief Act, 1963. The court made it clear that in any case, the plaintiff had an equally effective alternative remedy open in the form of a suit for declaration with consequential relief. Thus, the suit was struck out on this account. 

Makmutha Beevi vs. Mohamed Meeran (2018)

Facts

The case Makmutha Beevi vs. Mohamed Meeran (2023) is centred on the property inheritance where Makmutha Beevi and Mohamed Meeran are the main claimants. After the death of Makmutha Beevi controversy started to emerge on how the provinces of the deceased should be divided to the heirs. The first question related evidently to the utilisation of Aul and Radd in the distribution of the share of the inheritor given the question of Islamic inheritance and the probabilities of multiple successors with differential rights and claims to the inheritance. 

Issues

  • Whether the doctrines of Aul (Increase) and Radd (Return) applicable in the distribution of Makmutha Beevi’s property or not?
  • Whether it is to the specific shares claimed by the plaintiff, Mohamed Meeran, and other heirs – does the Islamic inheritance law apply? 
  • Whether the plaintiff makes a case for an injunction to restrain the other heirs from dealing with the property against them?

Judgment 

The Supreme Court found that having failed to make out a prima facie case of the plaintiff’s claim of a specific share in the estate of Makmutha Beevi, the suit for permanent injunction was dismissed. The plaintiff failed to present adequate evidence to give an exclusive right to the shares claimed per the principles of the Islamic laws of inheritance and distribution of shares and taking into account all the real possibilities of heirs. The court was rather clear in stating that where there is no prima facie case, questions of balance of convenience and where there is irreparable loss are of no value at all. Besides, the action initiated under the suit is procedurally criminal as it only asks for an injunction without praying for a declaration of title contrary to Section 41(h) of the Specific Relief Act, 1963. Therefore, since there was no attempt made to seek a declaration of title, the suit is non-maintainable. 

Critical analysis

The doctrines of Aul and Radd are vital in the Islamic inheritance law to ensure that the estate of a person who dies is equitably and properly divided. These doctrines govern circumstances in which the shares that have been previously offered may have been issued to securities in a way that may be prejudicial to one or the other rightful beneficiary. However, they are not easy to operate and their application must be carefully planned. 

Complexity: The situation can become rather complicated as far as figures are concerned when considering the application of Aul and Radd in an estate where sub-sharers are to receive different shares. The action of share change in a bid to restore equity within them is an activity that requires calculation. Such difficulties may help to enhance the possibility of a mistake when applying the doctrines, which, in turn, may lead to other erroneous interpretations of the heirs’ share and family members’ conflicts. 

Disputes: As the law provides it, there are conflicts over inheritance when one has not applied the Aul and Radd doctrines as they ought to or simply does not understand the said doctrines. Such disagreements may occur in cases of difference concerning the doctrines or in matters where the net adjusted shares have been computed inaccurately. Due to the above-mentioned complications, in cases where the above doctrines are to be used in the distribution of an estate, consultation with professional lawyers with sufficient knowledge on the subject of Islamic inheritance law is recommended. Expertise of this kind can be helpful for the elimination of doubts, for verification of the conformity of events to legal rules, and for the elimination of conflicts that can arise. 

In essence, the doctrines of Aul and Radd are relevant when it comes to dividing an inheritance more fairly. However, they have to be used with presumably sufficient attention to prevent otherwise complex circumstances. 

Conclusion 

In conclusion, Aul and Radd retain two important principles of the Islamic Inheritance law that can be of help in an endeavour to meet justice in the distribution of an individual’s property. They address the discrepancies between the assigned shares and the actual distribution of assets to heirs. They are easier to understand yet they are likely to bring about different areas of divergence resulting from mathematical formulas. As this demonstrates, various factors come to light when establishing the doctrines and the help of a legal advisor is always useful in this matter. It is also important to point out that, the said doctrines apply solely to the residuary estate and do not affect fixed shares or special gifts left by the deceased. 

Frequently Asked Questions (FAQs)

A man dies and leaves behind a wife and a son, the wife gets 1/4 shares and the son gets 1/2. What would happen to the inheritance if the property is small? 

In this case, the sum of predetermined shares of the wife and the son is 3/4 of the property. Since this would be below unity (1), then Radd would be applicable and so this would take place: The last share which is 1/4th of the estate would then be divided about the shares that the wife and the son had got out of the estate at the time of division of the assets. Thus, both are provided for to the extent of their respective share of the estate, should the total estate be small. 

The woman dies and her share is divided between her husband who gets 1/4th and the two daughters, who get 2/3rd. In what manner would the inheritance be divided? 

The combined share is = 1/4(husband) + 2/3 (daughters) = 11/12 < 1 Since, the combined shares do not add up to one or 100 percent as the case may be, there is no necessity to apply the Doctrine of Radd. The inheritance is divided as follows: the husband gets 1/4 of the property and the two daughters jointly take 2/3 of the property while each daughter takes 1/3. 

Why is the doctrine of Radd an issue in Sunni law for the fixed-share heirs? 

Here in the aspect of Sunni law, the Doctrine of Radd by which the fixed-share heirs take other property after the shares have been divided but this does not apply to the spouse. This can be a problem as this means the share of the spouse remains fixed thereby creating a situation whereby the spouse is entitled to a smaller portion even though there may still be portions of the estate left over while other heirs are allowed to claim more. 

What were the effects of this exception to partition on a widow’s share under Shia Law? 

But under the earlier Shia law of inheritance, if the widow is the only surviving heir then she had no right over the surplus through Radd since the remainder was considered to go to the State. While some of the cases have permitted the widow to receive the balance such as the Oudh court it is not quite popular and can reduce the widow to a fixed share only. 

Does the presence of any of these close relatives make it unlawful for a mother to receive Radd under the Shia law? 

Further, under the Shia law it is clearly stated if an intestate dies leaving behind a mother, a father, a daughter, or some brothers or sisters, the mother loses her right even the right to get the Radd. These results can lead to the mother receiving only the fixed share while the balance is distributed among the other beneficiaries. 

Is it possible for the testator to completely negate Aul and Radd while making the will? 

In most cases, no. The Doctrines of Aul and Radd are admitted as mandatory rules of the Islamic law of inheritance; they cannot be omitted by a will. The testator’s authority is to make bequests (gifts) within the legal boundaries of Islamic law as described earlier, however, they are unable to change the shares or the application of Aul and Radd to the spending. 

What if there is no one to share (the primary heirs)? 

When there are no sharers, the whole estate passes to the residuary, who are distant relations in most cases. Aul and Radd do not apply to the shares distributed among the residuaries, their shares are awarded considering the relation one had with the deceased. 

How can the prospects for conflict over Aul and Radd be reduced? 

Here are some steps to minimise disputes: 

  • Clear will: The deceased can produce a distinct and elaborate will to ascertain his/her or their directions on the mode of distributing the properties. As can be seen, the will cannot reflect a breach of Aul and Radd rules but it is else capable of defining the share of bequests to the extent permissible by the rules. 
  • Legal guidance: Consulting an Islamic lawyer or any lawyer who specialises in Islamic inheritance law is very important. They can advise and assist when making decisions about Aul and Radd and guarantee a trouble-free acceptance step. 
  • Open communication: Family members should have comprehensive conversations concerning expectations of inheritance so that any complex issues can be highly avoided.

Why is the Doctrine of Radd not applicable in case there are residues?

As per the Muslim law of inheritance, residuries are entitled to all the property which is left after the division between primary heirs and distant relatives. They inherit all the property which is left after such division, if at all it is left. However, in case there are no residuries, there can be a situation where the property may be left after the distribution of shares of predetermined heirs, and since property cannot be in abeyance, the leftover property is distributed proportionately among the predetermined heirs and hence, there is no need to apply the Doctrinevof Radd.

References

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

RELATED ARTICLESMORE FROM AUTHOR

LEAVE A REPLY

Please enter your comment!
Please enter your name here