Principles of Inheritance notes — Unit 5

The Islamic law of inheritance (Ilm-al-Faraiz) is praised globally for its meticulous detail. Before dividing the estate among heirs, four primary duties must be fulfilled from the deceased's property:

• 1. Payment of funeral expenses.
• 2. Payment of expenses for probate/letters of administration.
• 3. Payment of all debts (including unpaid Dower to the widow).
• 4. Payment of legacies under a Will (limited to 1/3rd of what remains after debts).

The property remaining after these four deductions is the 'heritable estate' that gets distributed among the heirs.

⇒Fundamental Rules

• No Birthright: Unlike Hindu Mitakshara law, a Muslim child does NOT acquire a right in the ancestral property by birth. The right of an heir only arises upon the death of the ancestor. (Nemo est heres viventis - Nobody is the heir of a living person).
• Rule of Representation (Non-Recognition): Sunni law strictly does not recognize the right of representation. Example: A has two sons, B and C. B dies while A is still alive, leaving a son D. When A dies, C will inherit everything. D gets nothing, because his father B died before A. (Shia law, however, partially recognizes representation).

The Sunni system is based on pre-Islamic Arab customs heavily modified by Quranic injunctions. It divides heirs into three strict classes.

⇒Class 1: The Sharers (Quranic Heirs)

These are 12 specific relations whose shares are explicitly mentioned in the Quran. They must be paid their fixed fractions first.

• 4 Males: Father, True Grandfather, Husband, Uterine Brother.
• 8 Females: Wife, Mother, True Grandmother, Daughter, Son's Daughter, Full Sister, Consanguine Sister, Uterine Sister.

⇒Class 2: The Residuaries (Agnates)

After the Sharers take their fixed fractions, whatever is left (the residue) goes to the Residuaries. These are primarily male agnates (relations through males), like the Son, Son's son, Father, Brother, and Paternal Uncle.
(Note: A Son is never a Sharer. He is always a Residuary, because he sweeps up all the massive leftover property)..

⇒Class 3: Distant Kindred (Uterine Relations)

These are blood relations who are neither Sharers nor Residuaries. They are mostly cognates (relations through females), like the Daughter's children, Sister's children, and Maternal aunts/uncles.

The Rule: Distant Kindred only inherit if there is absolutely NO Sharer and NO Residuary alive (with the exception of the Husband/Wife, who do not exclude Distant Kindred).

⇒The 2:1 Ratio (Male vs Female)

A fundamental rule in Islamic inheritance is that when a male and female of the same degree inherit together (e.g., Son and Daughter, or Brother and Sister), the male takes double the share of the female.

Example: A man dies leaving a Son and a Daughter. The estate is divided into 3 shares. The Son gets 2/3, the Daughter gets 1/3.

Because the Quran fixes specific fractions (like 1/2, 1/4, 1/8) for Sharers, the mathematical total of these fractions sometimes doesn't equal exactly 1 (the whole estate). Jurists created two doctrines to solve this math problem.

Note on Husband/Wife: Historically, the Husband and Wife were not entitled to the 'Return' (Radd). However, in modern Indian law, if there are absolutely no other blood relations, the residue will return to the Husband/Wife rather than going to the Government (Escheat).

The Shia system of inheritance is fundamentally different from the Sunni system. Shias reject the artificial pre-Islamic Arab distinction between Agnates (male line) and Cognates (female line).

⇒Classification by Proximity

Shia law divides all blood relations into three mutually exclusive Classes based strictly on blood proximity.

• Class I: Parents, Children, and lineal descendants (Grandchildren).
• Class II: Grandparents, Brothers, Sisters, and their descendants.
• Class III: Paternal and Maternal Uncles, Aunts, and their descendants.

⇒The Golden Rule of Shia Inheritance

The presence of ANY heir in Class I absolutely excludes ALL heirs in Class II and III. (e.g., If a daughter [Class I] is alive, a brother [Class II] gets absolutely nothing).

Contrast with Sunni Law: In Sunni law, a daughter only gets half, and the brother (as a residuary) gets the rest. Shia law treats the daughter much more favorably by giving her the whole estate and excluding the brother.

⇒Summary of Master Concepts

• No Birthright: Inheritance opens only on death.
• Sunni Classes: Sharers (Fixed Quranic fractions), Residuaries (Agnates who take the leftover), Distant Kindred (Cognates).
• Math Doctrines: Aul (Increase denominator to reduce shares when total > 1). Radd (Return leftover to Sharers when total < 1 and no residuaries exist).
• Shia Classes: Based purely on blood proximity. Class I completely excludes Class II and III. Agnates and Cognates are treated equally.

⇒University Exam Tips for this Unit (Premium Advice)

• The Daughter vs Brother Question: Examiners love asking: 'A Muslim dies leaving a Daughter and a Brother. Distribute the property.'
  Answer: You MUST split the answer by sect.
  Under Sunni Law: Daughter (Sharer) gets 1/2. Brother (Residuary) gets 1/2.
  Under Shia Law: Daughter is Class I. Brother is Class II. Daughter gets the entire 100%. Brother gets 0.
• Explain Aul/Radd Simply: Don't get bogged down in complex math in your exam paper. Define the problem (fractions > 1 or < 1), state the solution (reduce proportionately or return proportionately), and give a simple 1-line numerical example.