Inheritance Law of Islam (Sharia law of Inheritance)

(اسلامی شرعی وراثتی قانون)

Inheritance Law of Islam (Sharia law of Inheritance)
 

 

Inheritance Definition:

  According to the author of Darul Mukhtar, inheritance is called Faraiz because Allah has Himself framed rules for division of heritage. Inheritance means legal and arithmetical principles whereby the right of everybody in the estate of a deceased person is ascertained.
(Darul Mukhtar P. 429)

  Inheritance, as defined by Dr. Tanzil-ur-Rehman, is an involuntary devolution of property through which the estate of the deceased person gets transferred to the heirs as his or her successors. Its constituents are:

  1. Deceased
  2. The Heir
  3. Estate of the Deceased
  4. (A Code of Muslim Personal Law, PP. 402, 403)

    Heritable Property:

    In legal term it is called the ?Estate? and in Urdu Tarka. There is no distinction in Islamic inheritance between moveable and immoveable or between ancestral and self-acquired property. It shall, however, be free from encumbrances. Essence of ancestral property is descent from an ancestor.

    Distribution of Estate:

    Funeral expenses, Debts of the deceased and his will, if any, are to be satisfied first.

    1. Funeral Expenses:
    2. Funeral expenses form the first charge on the estate of the deceased person and must be disbursed before payment of debts or will. Besides disbursements connected with the actual funeral including the ?Chehlam?, all legitimate death-bead charges, such as fee of doctors attending the deceased, cost of medicines, etc., come in the category.
      (Muhammad Law by Syed Ameer Ali, P.35)

    3. Debts of Descendant:
    4. The debts of the deceased must be satisfied after the funeral charges. Dower, if any payable to the widow of the deceased, is also a debt, commonly known as ?dower-debt?. The debts cover the wages earned by and due to servants.
      (Mulla, S. 92 and its Commentary, P. 247, Muhammad Law by Syed Ameer Ali, P.35 with ref. to Fatawa Alamgiri)

    5. Will of the Deceased:
    6. After payment of death-bed charges, funeral expenses and debts, any valid bequest is to be satisfied out of a third of what remains. This refers to legacy of one-third of the surplus estate to a stranger. A bequest to an heir is no valid unless the other heirs consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share. In determining whether a person is or is not an heir, regard to be held, not to the time of execution of the will, but to the time of the testator? death.

      According to Shia Law, a testator may leave a legacy to an heir so long as it does not exceed one-third of his estate. Such a legacy is valid without the consent of other heirs. But if the legacy exceeds one-third, it is not valid unless other heirs consent there too. Such consent may be given before or after the death of the testator.

      According to the Hanfi Law, bequest in excess of the one-third cannot take effect unless other heirs consent there too after the death of the testator. Consent after the death of testator by heirs need not be expressed, but could be inferred from conduct of heirs. A will even though not in conformity with the rules for investigation on demise of a Sunni Muslim, might yet be accepted and acted upon after the passing away of testator, if all legal heirs on opening of succession agree to abide by the same.
      (Muhammadan Law, P. 36, Darul Mukhtar, P. 431, Digest of Muhammadan Law by Baillie, P. 694, Mulla, PP. 116, 117, 118 with ref. to Baillie, II, 244, Haddaya, P. 671, Al-Sharia, P. 43, PLD 1977 SC 420, 1987 CLC 7, PLD 1989 Kar. 350)

    7. Partition of Shares before Payment of Debts:
    8. A partition of shares before payment of debts not invalidate the division of the property, the heirs remaining liable for the debts in proportionate to the assets received by each. Inheritance under the Islamic law immediately opens on death of ancestor. Sanction of Mutation is only an executive step to give effect to the law of inheritance. Heir becomes owner in the estate immediately on death of his ancestor. Estate of the deceased person vests in predetermined proportions in legal heirs. All such heirs become tenants-in-common in such estate. All the heirs have equal rights and none of them has precedence over the other.
      (Muhammadan Law by Syed Ameer Ali, P. 36, PLJ 1990 SC 139, 1999 CLC 795, PLD 1989 Kar. 350, PLD 1958 Dacca 68)

    Inheritance according to Quran:

    Qur’an 4:11 Allah commands you as regards your children (inheritance), To the Male, a portion equal to that of Two Females; If (there are) only Daughters, two or more, their share is TWO-THIRDS of the inheritance; If only one, her share is HALF. For Parents, a SIXTH share of inheritance to Each if the deceased left Children; If no Children, and the Parents are the (Only) heirs, the Mother has a THIRD; If the deceased left Brothers or (Sisters), the Mother has a SIXTH. (The distribution in all cases is) after the payment of legacies he may have bequeathed or debts. You know not which of them, whether your parents or your children are nearest to you in benefit. (these fixed shares) are ordained by Allah. And Allah is Ever All-Knower, All-Wise. Qur’an 4:12 In that which your Wives leave, your share is a HALF if they have no Child; But if they leave a Child you get a FOURTH of that which they leave after payment of legacies that they may have bequeathed or debts. In that which You leave, their (Your Wives) share is a FOURTH if you have No Child; But if you leave a Child they get an EIGHTH of that which you leave after payment of legacies that you may have bequeathed or debts. Qur’an 4:176 They ask you for a legal verdict, Say, Allah directs (thus) about Al-Khalala (those who leave neither ascendants nor descendants as heirs). If it is a Man that dies, leaving a Sister but no Child, She shall have HALF the inheritance. If (such a deceased was) a woman, who left no Child, her Brother takes her Inheritance. If there are two Sisters, they shall have TWO-THIRDS of the inheritance; If there are Brothers and Sisters, the male will have TWICE the share of the female. (Thus) does Allah make clear to you (His Law) lest you go astray. And Allah is the All-Knower of everything.

    Classes of Heirs in Hanfi Law and shares of Sharers:

    1. Sharers:
    2. Sharers are those who are entitled to a prescribed share of the inheritance.
    3. Residuaries:
    4. Residuries are those who take no prescribed share but succeeds to the ?residue? after the claims of the sharers are satisfied.
    5. Distant Kindred:
    6. Distant Kindred are all those relations by blood who are neither shares nor residuaries.

    SHARES OF SHARERS IN INHERITANCE IN HANFI LAW:

    1. Share of Husband if no Entitled Descendants exist (ie. Children / Grandchildren)
    2. Then
      Husband = 1/2
      IF Entitled Descendants exist (ie. Children / Grandchildren)
      THEN
      Husband = 1/4
      Note: Entitled Descendants = Sons, Daughters, Son’s Son, Son’s Daughter. Daughter’s children are NOT entitled.

    3. Share of Wife if no Entitled Descendants exist (ie. Children / Grandchildren)
    4. Then
      Wife = 1/4
      if Entitled Descendants exist (ie. Children / Grandchildren)
      Then
      Wife = 1/8
      Note: Entitled Descendants = Sons, Daughters, Son’s Son, Son’s Daughter. Daughter’s children are NOT entitled.

    5. 3. Share of Daughters if only one Daughter (and No Sons)
    6. Then
      Daughter = 1/2
      If two or more Daughters only and no sons
      Then
      Daughters = 2/3
      (to be shared equally between all of them)
      If both Sons & Daughters exist
      Then
      Son : Daughter = 2:1

    7. Share of Father if Entitled Descendants exist (Sons, Daughters, Son’s Sons, Son’s Daughters)
    8. Then
      Father = 1/6
      If no Male Descendants exist (Sons, Son’s Sons)
      Then
      Father = 1/6 + Residue
      (Residue = Remainder after all legal shares are distributed)
      If no Entitled Descendants exist
      Then
      Father = Residue

    9. Share of Mother if Entitled Descendants or Brothers / Sisters exist
    10. Then
      Mother = 1/6
      If no Entitled Descendants exist
      Then
      If no Brothers / Sisters, no Father, no Spouse existEntitled Descendants
      Mother = 1/3
      IF Brothers / Sisters , Father or Spouse exist
      Then
      Mother = 1/3 of Residue

    11. Utrine Brothers / Sisters ( from same Mother, different Father)
    12. If one Uterine Brother / Sister exist
      Then
      If No Entitled Descendants and no Male Ascendants
      (Father/Father’s Father etc)
      Then
      Utrine Brother = 1/6 or
      Utrinr Sister = 1/6
      If two or More Utrine Brothers / Sisters exist
      Then
      If no Entitled Descendants and no Male Ascendants (Father/Father’s Father etc.)
      Then
      All Utrine Brothers and Sisters = 1/3
      Note: If there are Utrine Brothers / Sisters in addition to Full Brothers / Sisters (same father / mother), then they will be sharer in the residue.

    13. Share of Son’s Daughter if one Son’s Daughter exist
    14. Then
      If no Daughters exist
      Then
      If no Son’s Son exist
      Then
      Son’s Daughter = 1/2
      If Son’s Son exist
      Then
      Son’s Daughter = Half Share of Son’s Son
      (ie Son’s SON share : Son’s DAUGHTER share = 2:1)
      If two or more Son’s Daughters exist
      Then
      If no Daughters exist
      Then
      If no Son’s Sons exist
      Then
      Son’s Daughters = 2/3 (equally between them)
      IF Son’s Son exist
      Then
      Son’s Daughter = Half Share of Son’s Son
      (ie. Son’s Son share : Son’s Daughter share = 2:1)

    15. Share of Full Brother / Sister:
    16. (Full Brothers / Sisters are brothers / sisters from the same Father & Mother)
      Brothers & Sisters inherit Only when there are No Descendants (Son / Sons, Son’s son etc.) and No Ascendants (Father / Grandfather etc.)
      The arabic word AL-KHALALA is used in the Quran, Chapter 4 – Al-Nisa, Verses 12 & 176, which is translated by almost all the translators of the Quran to mean “Ascendants & Descendants” thus giving rise to the interpretation that they include “Parents and Children”. However, many scholars have preferred to classify the word as meaning “Father or Son” thus excluding the female components of both Ascendants and Descendants (mother & daughters).
      If no Full Brother and No Female Entitled Descendant exist (daughter, Son’s daughter etc.)
      Then
      IF deceased was Male
      Then
      Full Sister = 1/2 (if only One)
      If No Full Sister and No Female Entitled Descendant exist
      Then
      If deceased was Female
      Then
      Full Brother = 1 (if only One)
      If Two or More Brothers and Sisters
      Then
      Full Sisters = 2/3 (shared equally between them)
      Full Brothers & Sisters (combination) = 2:1
      If no Full Brother exist but Female Entitled Descendant exist (daughter, Son’s daughter etc.)
      Then
      Full Sister = 1/6 (if only one)
      If no Full Sister exist but Female Entitled Descendant exist
      Then
      Full Brother = 1/6 (if only one)
      If Female Entitled Descendant exist
      Then
      Full Sisters & Brothers = 1/3 (share equally)

    17. Consanguine Sister (Sister from same Father but different Mother)
    18. Consanguine Sisters inherit Only when there are no Sons or Son’s Sons and no Father and no Full Brothers.
      If only one Full Sister and no Consanguine Brother
      Then
      Consanguine Sister (if only one) = 1/2
      Consanguine Sisters (if two or more) = 2/3
      If One Full Sister and Consanguine Brothers
      Then
      Consanguine Brother : Sister = 2:1

    19. True Grandmother:
    20. True Grandmother is defined as the one whose line of connection with the deceased is not interrupted by a Male between two Females. They are entitled only if the Fathet or Mother do not exist.
      Eg. Mother’s Mother, Father’s Mother
      Father’s Father’s Mothet, Mother’s Mother’s Mother
      Trur GrandmotherRUE = 1/6

    21. True Grandfather:
    22. True Grandfather is the one whose line of connection with the deceased is not interrupted by a Female between two Males. They are entitled only if the Father or Mother do not exist.
      Eg; Father’s Father
      Father’s Father’s Father
      Mother’s Fathet
      Mother’s Father’s Father
      True Grandfather = 1/6 If Male Descendants exist like Son etc.
      True Grandfather = 1/6 + Residue If Female descendants exist Entitled Descendants.
    23. Uncle & Aunts (Father’s / Mother’s Brothers & Sisters)
    24. Uncles and Aunts are Only entitled in the absence of Grandparents. This means that they will receive shares only if there are no Parents and Grandparents because Grandparents do not inherit when the Parents are living. They will also not inherit if the children living. Or children Entitled Descendants of 2:1 for Male:Female.

    25. Nephews and Nieces (Children of Brothers/Sisters)
    26. Nephews and Nieces are only entitled in the absence of Brothers and Sisters. This means that they take the shares of the Brothers / Sisters of the deceased in their absence. Hence a Nepew / Niece will receive what his/her parent would have received if he / she was alive. They will also not inherit if the children or children’s children of the deceased are living. Proportions here are also 2:1 for Male:Female.

    Classes of heirs in Shia Law and Table of Shares:

    The Shia divides here in two groups, namely;

    1. Heirs in Consanguinity, that is, blood relations and
    2. Heirs by Marriage, that is, husband and wife.


    Heirs by Consanguinity are divided into three classes and each class is subdivided into two sections:
    These classes are respectively compared as follows:
    1. (i) Parents;
      (ii) Children and other lineal descendants h.l.s;
    2. (i) Grandparents (True as well as false);
      (ii) Brothers and Sisters and their descendants h.l.s;
    3. (i) Paternal and
      (ii) Maternal uncles and aunts of the deceased and of his parents and grandparents h.h.s; and their descendents h.l.s.

    4.   Of those these classes of heirs, the first excludes the second from inheritance and the second excludes the third. But the heirs of the two sections of each class succeeds together, the nearer degree in each section excluding the more remote in that section.
      (Baillie, II, 276, 280, 285)

TABLE OF SHARERS IN SHIA LAW [Sec. 90 Principles of Muhammadan Law]

Sharers Normal Share of One Normal Share of two or more collectively Conditions under which the share is inherited Share as varied by special circumstances
Husband 1/4 When there is a lineal descendants. 1/2 when no such descendants.
Wife 1/8 1/8 When there is a lineal descendants. 1/4 when no such descendants.
Father (b) 1/6 When there is a lineal descendants. [If there be no lineal descendant, the father inherits as a residuary.]
Mother 1/6 a: When there is no lineal descendant. Or
b: When there are two or more full or consanguine brothers, or one such brother and two such sisters, or four such sisters, with the father.
Daughter 1/2 2/3 When no son. [With the son she takes as a residuary.]
Uterine Brother
Or Sister
1/6 1/3 When no parent, or lineal descendant.
Full Sister 1/2 2/3 When no parent, or lineal descendant, or full brother, or father?s father. [The full sister takes as a residuary, with the full brother?s father.
Consanguine Sister 1/2 2/3 When no parent, or lineal descendant, or full brother or sister, or consanguine brother or father?s father. [The consanguine sister takes as a residuary with the consanguine brother and also with the father?s father.
 

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