Intestate succession
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This article is written by Shruti Kulshreshtha, from Symbiosis Law School, Hyderabad.

Introduction

Intestate succession under Islamic law is a religious law, based on the principle that there must exist mandatory rules for the passing of property from generation to generation. These rules are made on the presumed closeness of the heirs to the deceased, who are segregated amongst different classes. The Islamic laws of inheritance can be divided into Hanafi law of succession and Shia law of succession, both of which derive from the common law of India. They have the force of law by virtue of the Muslim Personal Law (Shariat) Application Act, 1937. The source of the rules of succession under Islamic law comes from the Holy Quran, Hadith, Ijma, and Qiyas. The rules of succession come into play only upon the death of the ancestor, and only then does his property vest in his heirs. 

Intestate succession in Islamic law

Succession refers to the transmission of the property of an ancestor upon his death, to the rightful heir. Where the inheritance of property is carried out according to the Will of the deceased, it is called testamentary succession. In some cases, the deceased dies without leaving a will, and hence the succession is executed according to the general rules. This is called Intestate succession. The fundamentals of intestate succession were compared to pre-emptive rights in the case of Gobind Dayal vs Inayatullah (1885). The Islamic succession is derived from the customary law of succession and is based on a patriarchal family system. After attaining the age of majority, a girl, as well as a boy, have equal rights to hold and dispose of the property inherited. They can lease it, mortgage it, or bequeath the property for themselves. The Surah IV of the Quran states that “From what is left by parents and those nearest related, there is a share for men and a share for women, whether the property is small or large- a determinate share.” 

In order to understand the rules of succession, it is crucial to know the meaning of the following:

  • Agnates: A person who is descended from the same male relation. For eg.: son, son’s son, son’s son’s son, etc.
  • Cognates: A person who is related to the deceased through a female relation. For eg.: Daughter’s son, mother’s father, etc.
  • Collaterals: Descendants in parallel lines from the ancestors. They can be either agnate or cognate. For Eg.: Consanguine brothers, Paternal aunts, etc.
  • Heir: A person who is entitled to inherit the property of another, after his death is an heir.

General principles of inheritance

Following are the general principles followed while under Islamic law:

  1. Nature of Property: The property of the deceased becomes heritable only after the payment of funeral expenses, debts, and legacies. The remaining property, whether movable or immovable, is heritable. Muslim law does not differentiate between corpus or usufruct, corporeal or incorporeal property. There is no concept of ‘joint family property’ and ‘separate property’. 
  2. The Doctrine of Representation: Doctrine of representation refers to the principle of representation of a pre-deceased father by his son for the purpose of inheritance of the  property of the pre-deceased father’s father. However, this doctrine is not recognized under Islamic law. The nearer heir excludes the remoter one in Muslim law. This means that if two people claim the inheritance, it will be determined according to the degree of closeness to the deceased.
  3. No birthright: The Islamic inheritance can only be availed upon the death of an ancestor. A person cannot be an heir of a living person. The right of inheritance, thus, is not a birthright. Until the death of an ancestor, a heir apparent is a mere spes successionis (chance of succession).
  4. The Succession of murdered deceased: A person who causes the death of the deceased is not entitled to inherit property, whether the murder was intentional or by accident. Any act committed by the heir apparent which causes the death of his ancestor, punishable under the law, forbids him to inherit the ancestor’s property. 
  5. Illegitimate child: An illegitimate child is considered to be the child of the mother only. Hence, it cannot inherit from the father, and neither can the father inherit from it. Inheritance rights exist only between the child and its maternal relations.
  6. Missing person: The Islamic law is not clear regarding the period for which the share of a missing person should be held. This is because of the uncertainty of the fact as to whether he is alive or dead. The Indian Evidence Act, 1872 prescribes under Section 108 that if it is proved that a person is missing for 7 years and has not been heard of, then the burden of proof of his life is on the person to affirm it. In other words, a person who has not been heard of for 7 years is legally presumed dead and the inheritance of his properties is commenced.
  7. Apostasy: A person who changes into a different faith than Islam or an apostate is not entitled to inherit the property of a deceased Muslim under Islamic law. However, Section 3 of the Caste Disabilities Removal Act, 1850 abolished this disability. In India, an apostate is entitled to inherit the property of a deceased Muslim, but his descendants are not entitled to inherit. 
  8. Escheat: In the cases where a deceased dies without leaving behind any heirs, then his property is inherited by the State. The State is considered to be the heir of every deceased. 
  9. Child in the womb: A child in the womb is considered to be a living person provided that he is born alive. Hence, a child in the womb can inherit the property of the deceased. 

Classes of heirs

The heirs under Islamic law can be divided into three classes. This division is made keeping in mind the closeness to the deceased. Under intestate succession, two primary questions are required to be answered:

(i) Who are the heirs of the deceased?

(ii) What is the share of each of the heirs?

The Islamic law divides heirs into 7 classes, 3 principal classes and 4 subsidiary classes. The principal classes are:

  1. Quranic heirs or Sharers or dhawul-furud
  2. Agnatic heirs or Residuaries or asabat 
  3. Uterine heirs or Distant kindred or dhawul-arham    

The subsidiary classes are:

  1. Successor by contract
  2. Acknowledged kinsman
  3. Sole legatee
  4. Escheat

Upon the death of the deceased, the first step is to make the payment for funeral expenses, debts and legacies of the deceased. Next, the property is divided amongst the respective relations or sharers in proportion to the shares they are entitled to receive. If any residue remains, it is then divided among the residuaries. If there are no sharers and residuaries, the whole property will be inherited by the distant kindred. 

A successor by contract is a person who entered into a contract with the deceased before his death, in consideration to receive a payment. This payment can be interest, fine etc. An Acknowledged kinsman is a person with whom the deceased made an acknowledgement of kinship. Like, a man can acknowledge another as his brother, who becomes an acknowledged kinsman. In the absence of any relation in the principal classes and the first two subsidiary classes, a person who is entitled to inherit the property of the deceased is known as the sole legatee. Finally, in the absence of any of the principal or subsidiary classes, the property of the deceased is inherited by the State and his whole estate would escheat to the Government.

Quranic heirs

The Quranic heirs or the sharers are those relations of the deceased whose shares have been determined by the Quran. Their share and the order of preference in succession is fixed under the Quran. There are 12 Quranic heirs. Let us discuss the sharers and their allotted shares.

  1. Husband: A surviving husband inherits his wife’s property. In case he has a child or child of a son how low soever, his share is ¼ of the heritable estate. But if he does not have a child or child of a son how low soever, then he inherits ½. 
  2. Wife: A surviving wife is entitled to receive ¼ of the heritable property where the husband has not left any child or son’s or grandson’s child. If the husband has left a child, then the wife inherits ⅛. In the exceptional cases where there is more than 1 wife, then they have to divide this share equally amongst themselves. 
  3. Father: The father becomes a Quranic sharer only if the deceased has left a child or son’s or grandson’s child. Otherwise, he is not a Quranic sharer. A father who is a Quranic heir inherits ⅙ of the deceased estate.
  4. Mother: There are 3 distinct scenarios for the mother’s inheritance:
  • ⅙ 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 1 brother and 1 sister, whether full, consanguine or uterine.
  • ⅓ share – When there is no child or child of the son how low so ever and no brothers or sisters.
  • ⅓ of remaining share after deducting the wife’s/husband’s share – Where there is a father and a wife/husband.
  1. Maternal Grandmother: In cases where the mother of the deceased is absent, the maternal grandmother will be entitled to inherit ⅙ of the share. 
  2. Paternal Grandmother: Only in those cases where both the parents of the deceased are absent, the paternal grandmother becomes a Quranic heir. She is entitled to get ⅙ share of the heritable estate. If there are 2 or more grandmothers of the deceased (maternal or paternal) who become Quranic sharers, then both the grandmothers will get a joint share of ⅙  which they have to share equally.
  3. Paternal Grandfather: A paternal grandfather becomes a Quranic sharer only when the father of the deceased is absent. He is entitled to receive ⅙ of the share. Maternal grandfather is not a Quranic sharer in any case.
  4. Daughters: The daughters of the deceased become Quranic heirs only in the absence of a son. Single daughter receives ½ share, but if there are more than 1 daughter, then all of them inherit ⅔ share collectively, which they share equally. 
  5. Son’s Daughter: The son’s daughter becomes a Quranic sharer only if she has predeceased the son of the deceased and such a son has not left behind any son of his own. So, a single son’s daughter receives ½ share while 2 or more son’s daughters receive ⅔ collectively, which they are required to share equally. If such grand-daughters survive with a single daughter of the deceased, they collectively get ⅙ share.
  6. Full sister: A single full sister receives ½ share of the heritable estate when there is no son how low so ever, father, grandfather, daughter, son’s daughter or brother. When there are 2 or more full sisters and no excluder, the sisters will get ⅔ share collectively.
  7. Consanguine sister: When there is only 1 consanguine sister with no full sister and no excluder, then she is entitled to receive ½ share. But if there is 1 full sister, then she will get only ⅙ share. 2 or more consanguine sisters take ⅔ share collectively in the presence of no excluder. But if there are 2 or more surviving full sisters, then the consanguine sister is not a Quranic heir.
  8. Uterine sister-brother: Uterine sisters and brothers become Quranic heirs only if there is no child, son’s child how low soever, father and grandfather of the deceased. The share of one such sister or brother is ⅙ and if there are 2 or more, they collectively inherit ⅔ share and divide it equally. 

Agnatic heirs

Agnate heirs or residuaries come into the picture only when after dividing the heritable estate between the Quranic heirs, there is still some estate left. This residue estate goes to the residuaries. All the residuaries are related to the deceased through males only. The residuaries are further divided into the following sub-categories:

Residuaries in their own rights

This class involves the agnatic male relations of the deceased. No female is included in this line of relationship. Residuaries in their own rights is divided into:

  1. Offspring of the deceased, that is the son of the deceased or the male lineal descendants. 
  2. The root of the deceased, which is the father or the grandfather of the deceased, how high so ever.
  3. Offspring of the father, that is the full brothers, consanguine brothers and their male lineage. 
  4. Offspring of the true grandfather, how high so ever. 

Residuaries in another’s rights

Those females who become residuaries, only when they coexist along with certain males fall under this category. This means that the females become residuaries when there exist males on the same degree, or of a lower degree who would receive such share. These are:

  1. Daughters with sons
  2. Son’s daughters with a son’s son or a male descendant 
  3. Full sister with the full brother
  4. Consanguine sister with her brother

Residuaries together with another

There are only two residuaries together with another:

  1. Full sisters, with the daughters or son’s daughters
  2. Consanguine sisters, with the daughters or son’s daughters

Uterine heirs

Only in the absence of sharers and residuaries, the heritable estate of the deceased is inherited by the uterine heirs or the distant kindred. One exceptional circumstance is that only when the wife or husband of the deceased survives, leaving behind no other sharer or residuary, then the distant kindred can inherit the rest of the estate remaining after the share of the wife or husband. In this class of heirs, all those relations who do not fit in the above classes are included. Meaning thereby, the female agnates and the cognates are placed in this class. Uterine heirs can be divided into 4 categories:

Descendants of the deceased

  1. Daughter’s children and their descendants
  2. Children of son’s daughters how low so ever and their descendants

Ascendants of the deceased

  1. False grandfathers, how high so ever.
  2. False grandmothers, how high so ever.  

Descendants of parents

  1. Full brother’s daughters and their descendants.
  2. Consanguine brother’s daughters and their descendants.
  3. Uterine brother’s children and their descendants. 
  4. Daughters of full brother’s sons how low so ever.
  5. Daughters of consanguine brother’s sons how low so ever.
  6. Sister’s (full, consanguine or uterine) children and their descendants.  

Descendants of immediate grandparents

  1. Full paternal uncle’s daughters and their descendants.
  2. Consanguine paternal uncle’s daughters and their descendants.
  3. Uterine paternal uncles and their children and their descendants. 
  4. Daughters of full paternal uncle’s sons how low so ever.
  5. Daughters of consanguine paternal uncle’s sons how low so ever. 
  6. Paternal aunts (full, consanguine or uterine) and their children.
  7. Maternal uncles and aunts and their children.
  8. Descendants of remote ancestors how high so ever (true or false). 

Doctrine of Aul

There may be cases where the arithmetic sum of the functional shares allotted to the heirs of the deceased is more than equity or less than equity. Where the sum of the shares is less than equity, then the doctrine of Aul or doctrine of increase is applied. When the total shares exceed unity, then the shares of each sharer is reduced by making a common denominator and increasing the denominator in order to equate it to the sum of numerators. 

Let us understand with the help of an illustration.

Where the husband gets ½ share and 2 full sisters get ⅔ share, the total becomes 7/6 which is greater than 1. This means that the doctrine of Aul is to be applied. 

Step 1: Make a common denominator. So, the common denominator is 6.

Step 2: Increase the denominator and make it equal to the sum of the numerators. So, 3/6 + 4/6 changes to 3/7 + 4/7 = 7/7 = 1. 

Now, the shares are divided proportionately. The husband will get a 3/7 share and the sisters will get 4/7 share collectively.     

Doctrine of Radd

After the division of shares, the total allotted shares are less than 1, and there is no residuary to inherit the residue, then the residue reverts back to the sharers in the same proportion of their shares. The only exception to this rule is that the wife or husband is not entitled to receive the return in the presence of an heir. This is the doctrine of radd or doctrine of return. 

Following is an illustration for better understanding.

The Mother of the deceased has ⅙ share and the daughter has ½ share of the estate. The total is ⅔, which is less than 1. Hence, the doctrine of radd will be applied.

Step 1: Make a common denominator. Here, the common denominator is 6.

Step 2: Decrease the denominator and make it equal to the sum of the numerators. So, ⅙ + 3/6 becomes ¼ + ¾ which is equal to 1. 

Thus, the mother will get ¼ share and the daughter will get ¾ share.    

Conclusion                 

From the above article, one important thing emerges, Islamic law of inheritance ensures following of the Quranic traditions in a pure form. The rules of inheritance promote a conflict-free succession of property, giving rise to predetermined rights of each individual. It is pertinent to note that these rules of inheritance are not the same for different systems under Muslim law such as the Shia system and Sunni system of inheritance is not the same. Nevertheless, all these rules are derived from customary law and have altered rules due to a difference in interpretation.

References


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