Muslim law of inheritance: Sunni and Shia - Family Law II - Mohammedan Law

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1. General principles
2. Sunni (Hanafi) law: three classes of heirs
3. Shia law: three classes
4. Aul and radd
5. Worked problems
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Shares first, residue second. Under Sunni law the estate is distributed in a fixed order: the sharers take their Quranic fractions, the residuaries take what is left, and the distant kindred take only if there are neither. Aul and radd are the two corrections used when the fractions add up to more or less than one. Practise two or three distributions; examiners set them.

1. General principles

Heritable property. The estate available for distribution is what remains after paying, in order, the funeral expenses, the debts, and legacies up to one-third.
No birthright. An heir has no interest in the property until the owner dies; an expectant heir's chance of succession (spes successionis) cannot be transferred or released. There is no joint family or survivorship.
No distinction between movable and immovable, ancestral and self-acquired property, and no primogeniture.
Male and female. Females are heirs in their own right, but where a male and a female of the same degree inherit together, the male generally takes double (son and daughter, brother and sister). Uterine brothers and sisters share equally.
Vested inheritance. The share vests on death. If an heir dies before distribution, his share passes to his own heirs.
Representation. Sunni law does not recognise it: a nearer heir excludes a more remote one, so a son excludes the son of a predeceased son. Shia law applies it within limits. (Section 4 of the Muslim Family Laws Ordinance, 1961 introduced representation in Pakistan; it does not apply in India.)
Exclusion. A person who causes the death of the deceased is excluded: under Sunni law any homicide, even accidental, excludes; under Shia law only intentional killing. A non-Muslim cannot inherit from a Muslim. The Caste Disabilities Removal Act, 1850 prevents a Muslim's change of religion from forfeiting his own rights of inheritance. An illegitimate child inherits from the mother only (Hanafi), and from neither parent (Shia).
Child in the womb. A child in the womb at the time of death inherits if born alive.
Widow's estate. A widow in possession of her husband's property in lieu of unpaid dower may retain it until the dower is paid, but this is a right of retention, not ownership.

2. Sunni (Hanafi) law: three classes of heirs

Sharers (Quranic heirs) take fixed fractions. There are twelve. The ones that come up in problems:

Husband: 1/4 if there is a child or son's child (how low soever); otherwise 1/2.
Wife (or wives together): 1/8 if there is a child or son's child; otherwise 1/4.
Father: 1/6 if there is a child or son's child. With only daughters, he takes 1/6 and is also a residuary. With no child at all, he takes as residuary.
True grandfather: as father, when the father is dead.
Mother: 1/6 if there is a child or son's child, or two or more brothers or sisters; otherwise 1/3. Where the heirs are the father, the mother and a spouse only, she takes 1/3 of the remainder after the spouse's share.
True grandmother: 1/6.
Daughter: 1/2 alone; 2/3 for two or more together. With a son, she becomes a residuary and takes half a son's share.
Son's daughter: 1/2 or 2/3 when there is no child; 1/6 with one daughter; excluded by a son or by two daughters (unless a son's son makes her residuary).
Full sister, consanguine sister: 1/2 or 2/3, excluded by a son, son's son or father; a full brother makes the full sister residuary.
Uterine brother or sister: 1/6 for one, 1/3 for two or more, shared equally; excluded by any child, son's child, father or true grandfather.

Residuaries (asaba) take what remains after the sharers. They are the agnatic relations in order: descendants (son, son's son), ascendants (father, true grandfather), descendants of the father (full brother, full sister with full brother, consanguine brother and so on, then their sons), and descendants of the true grandfather (uncles and their sons). Nearer excludes more remote.

Distant kindred (zawi-ul-arham) are the relations who are neither sharers nor residuaries, such as a daughter's children, a sister's children, maternal uncles and aunts. They take only when there is no sharer or residuary, except that they take before the State where the only sharer is a spouse, who cannot take the return.

3. Shia law: three classes

Shia law groups heirs by blood into three classes, each excluding the next. A surviving spouse inherits with every class.

Class I: parents, and children and other lineal descendants how low soever.
Class II: grandparents and other ascendants, and brothers and sisters and their descendants.
Class III: paternal and maternal uncles and aunts, of the deceased and of his parents and grandparents, and their descendants.

Within each class the heirs are sharers or residuaries, and the nearer excludes the more remote, but a grandchild represents a predeceased child. Shia law has no separate category of distant kindred. A childless widow takes no share in land, only in movables and the value of buildings.

4. Aul and radd

Aul (increase) applies when the shares add up to more than one. The common denominator is increased to the total of the numerators, so that every sharer's fraction is reduced proportionately. Sunni law applies aul. Shia law does not: the deficit falls on the daughters or sisters.

Radd (return) applies when the shares add up to less than one and there is no residuary. The surplus is returned to the sharers in proportion to their shares. Under Sunni law the spouse is not entitled to the return so long as there is another heir, including a distant kinsman; Indian courts have allowed the return to a spouse where there is no other heir. Under Shia law the husband may take the return in some cases but the widow never does.

5. Worked problems

(a) A Sunni man dies leaving his widow, his father, his mother and two daughters.

Widow 1/8 = 3/24; father 1/6 = 4/24; mother 1/6 = 4/24; two daughters 2/3 = 16/24.
Total 27/24, which exceeds one. Apply aul: raise the denominator to 27.
Widow 3/27 (= 1/9); father 4/27; mother 4/27; each daughter 8/27. Nothing remains for the father as residuary.

(b) A Sunni woman dies leaving her mother and one daughter.

Mother 1/6; daughter 1/2. Total 4/6. No residuary.
Apply radd in the ratio 1:3. Mother takes 1/4; daughter takes 3/4.

(c) A Sunni man dies leaving a widow, a son and a daughter.

Widow 1/8. The remaining 7/8 goes to the son and daughter as residuaries in the ratio 2:1.
Son 14/24 (= 7/12); daughter 7/24.

Trap. In problem (a) students often give the father 1/6 and then the “residue” as well. There is no residue once the shares exceed one; aul reduces everyone, including the father. Check the total before assigning any residue.

How this is examined

Expect an essay on the general principles of Muslim inheritance, or on the classification of heirs under Sunni law, and a short note on aul, radd or the doctrine of exclusion. Many papers add a distribution problem: show the fractions, add them, apply aul or radd if needed, and state each heir's final share. A comparison of Sunni and Shia rules (classes, representation, aul, the childless widow) is a common 6-mark question.