DATE DOWNLOADED: Wed Jul 27 09:18:00 2022

SOURCE: Content Downloaded from HeinOnline

Citations:

Bluebook 21st ed.

Shania, Muslim Law of Inheritance: Hanafi School, 2 Jus Corpus L.J. 725 (2022).

ALWD 7th ed.

Shania, Muslim Law of Inheritance: Hanafi School, 2 Jus Corpus L.J. 725 (2022).

APA 7th ed.

Shania. (2022). Muslim law of inheritance: hanafi school. Jus Corpus Law Journal,
2(3), 725-737.

Chicago 17th ed.

Shania, "Muslim Law of Inheritance: Hanafi School," Jus Corpus Law Journal 2, no. 3
(March-May 2022): 725-737

McGill Guide 9th ed.

Shania, "Muslim Law of Inheritance: Hanafi School" (2022) 2:3 Jus Corpus LJ 725.

AGLC 4th ed.

Shania, 'Muslim Law of Inheritance: Hanafi School' (2022) 2(3) Jus Corpus Law Journal
725

MLA 9th ed.

Shania. "Muslim Law of Inheritance: Hanafi School." Jus Corpus Law Journal, vol. 2,
no. 3, March-May 2022, pp. 725-737. HeinOnline.

OSCOLA 4th ed.

Shania, 'Muslim Law of Inheritance: Hanafi School' (2022) 2 Jus Corpus LJ 725

-- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and
Conditions of the license agreement available at
https://heinonline.org/HOL/License
-- The search text of this PDF is generated from uncorrected OCR text.
-- To obtain permission to use this article beyond the scope of your license, please use:
Copyright Information
 Jus Corpus Law Journal
Open Access Law Journal - Copyright ©2022 - ISSN 2582-7820
Editor-in-Chief - Prof (Dr.) Rhishikesh Dave; Publisher - Ayush Pandey

This is an Open Access article distributed under the terms of the Creative Commons Attribution-
Non-Commercial-Share Alike 4.0 International (CC-BY-NC-SA 4.0) License, which permits
unrestricted non-commercial use, distribution, and reproduction in any medium, provided the
original work is properly cited.

Muslim Law of Inheritance: Hanafi School

Shaniaa

aUILS, Panjab University, Chandigarh, India

Received 19 April 2022; Accepted 07 May 2022; Published 13 May 2022

The law of inheritancefollowed by Muslims is based on two main laws of succession: the Shia Law of Succession and the Sunni

Law of succession. The Pre-Islamic Customay law of Succession has been extended by the amendments made by the Prophet

and the Holy Quran. The Sunnis follow the Hanafi Law of succession which blends the two principles in a harmonious

manner. According to this law of succession, the heirs are classified into three broad categories- the QuranicHeirs, the Agnatic

or Residuay Heirs, and the Uterine heirs. It also signfiesfour Subsidiay Classes. The Doctrine of Aul' or 'Radd' may be

applied in case the total of the fractionalshares is not unity.

Keywords: sunni, shares, heir, agnates, residue, descendants, ascendants.

INTRODUCTION

India is a diverse country. There are different rules and regulations governing different issues.

However, certain affairs require distinct laws to respect the needs and interests of disparate
groups of society. The Law of Succession is one such example that falls under the category of

personal laws. We have the Hindu Succession Act, the Indian Succession Act, and also the

Parsi Succession Act. The rules of inheritance concerned with Muslims are governed by two

laws of succession - the Shia Law of Succession and the Hanafi Law of Succession. Both these

725

/
 SHANIA: MUSLIM LAW OF INHERITANCE: HANAFI SCHOOL

laws are recognized under the common law of India and find recognition under the Muslim

Personal Law (Shariat) Application act, 1937. 1These laws have been derived from Sharia and

found their sources in the Holy Quran, the Ijams, the Sunnas, and the Qiyas. 2 There is no

concept of 'Joint property' or 'Private property' under Muslim law and the heir can only claim
the property after the death of the ancestor. After attaining the age of majority, a girl and her

brother have similar rights to hold property and dispose of it off, as they desire. 3The Quran

says "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".

INTESTATE SUCCESSION UNDER MUSLIM LAW

When the property is distributed as per the will of the deceased, it is called Testamentary
Succession. However, when the inheritance of the property is done following the rules laid

down under Muslim Law, it is termed as Intestate succession. On critically examining the

fundamentals of the law, it is found that the Islamic Law of Inheritance is fabricated on the

foundation of the pre-Islamic customary law of succession, and subsequently, the reforms

introduced by the Prophet and the Holy Quran. This opposition of the two principles led to a
divergence in the views of the Shias and Sunnis regarding the rules governing succession. In

India, the Sunni law is steered by the Hanafi, since most of the Sunnis are Hanafis.

IMPORTANT TERMS ASSOCIATED WITH THE LAW

" Heir: An individual who inherits the assets of another after his loss of life is called an

heir.

" Agnate: An individual who is associated with the deceased as a descendant from the
identical male relation. For eg., sons, son's sons, son's son's son, son's daughter, son's

son's daughter, father's father, and father's mother.

1 Sree Kumar, 'Sucession Under Hanafi Law' (Lawyers Club India, 10 October 2008)
<https: / /wwwlawersclubindia.com articled-8220SUCCESSION-UNDLR-HANAFI-L.W-
424asp msc1d=a9fOca45bd8ciiecQ9O0dea3ed6a63O.> accessed 15 April 2022
2 Ibid

3 Jafri Begum, Muslim Society in India (1st Edition, Kanishka Publishers 2002) 23-24

726
 JUS CORPUS LAW JOURNAL, VOL. 2, ISSUE 3, MARCH - MAY 2022

" Cognate: An individual associated with the deceased as a descendant from a female

relation. For eg., daughter's son, daughter's daughter, father's mother's father.

" Collaterals: Collaterals are descendants in parallel lines from the common ancestor.

They can be agnates or cognates. For eg.,

> Agnate Collaterals - consanguine brothers and sisters, paternal uncles and aunts.

> Cognate Collaterals - uterine brothers and sisters, maternal uncles and aunts.

" True Grandfather: A male ascendant among whom and the departed no female intervenes.

For eg., father's father, father's father's father.

" True Grandmother: A female ascendant among whom and the departed no male
intervenes. For eg., father's mother, mother's mother.

" False Grandfather: A male ascendant between among and the departed female intervenes.
For eg., mother's father, father's mother's father.

" False Grandmother: A female ascendant among whom and the departed a false

grandfather intervenes. For eg., the mother's father's mother.

" Son's son how low soever: Lineal male descendants are referred to as son's son how low

soever. For eg., son's son, son's son's son.

" Son's daughter how low soever: These are the daughters of lineal male descendants. For

eg., son's daughter, son's son's daughter.4

PRINCIPLES OF PRE-ISLAMIC CUSTOMARY LAW OF SUCCESSION

> The law of succession in the Pre- Islamic Arabia was based on the substructure of

preferring male agnates over females. The nearer male agnates were entitled to

succession excluding the agnates lesser in degree.

> Females and cognates were denied the inheritance of the property.
> The order of preference usually had ascendants over the top, followed by descendants
and then the collaterals.

> Only blood relations were entitled to inherit, excluding the relations by affinity.

> The share was divided equally among the make agnates of equal degree.'

4 Sree Kumar (n 1)

727
 SHANLA: MUSLIM LAW OF INHERITANCE: HANAFI SCHOOL

PRINCIPLES OF SUCCESSION REFORMED BY ISLAMIC LAW

> Certain females and cognates were recognized as heirs.

> Kinship relationships created as a result of marriage were entitled to succession.

> The descendants were permitted to inherit the property along with the ascendants.
> After distributing specified shares among the heirs mentioned in the Pre-Islamic

Customary principles of succession and the newly created heirs (Sharers), the residue
was designated to the customary heirs known as the Residuary.'

In Murtaza Hussain Khan v Mohammad Ali Khan,7 the Privy Council observed that the Quran
introduced numerous amendments to the then existing laws of succession. While the Sunnis

alter the rules in a specified manner according to the Quran and the Prophet, the Shias on the

other hand extrapolate the principles and fuse them with the pre-existing Customary Laws

altogether leading to a new set of rules.8

GENERAL RULES OF MUSLIM LAWS OF SUCCESSION

PROPERTY: Movable and immovable property is not distinguished under the Muslim law of

inheritance. Being a member of the family does not guarantee heirship.

DOCTRINE OF REPRESENTATION: This doctrine is not recognized under Muslim law.

However, it may be used in a limited way to deduce the amount of share of any given legatee.
According to Sunni law, there is no provision for an apparent heir to pass his succession to his

heir. Whereas, under Shia law, certain cases may allow it.9 The division among the heirs

under Sunni law is per capita and not per stripe. Although, this doctrine may be applied to the
succession of cognates.

5 Asaf Ali Asghar Fyzee, Outlines of Muhammadan Law (3rd Ed, Oxford University Press 1948) 382
6 Sarkar & Santosh Kumar, 'Gender justice in succession laws in India: Succession Under Muslim Law, Chapter 3'
(Shodhganga) <https://shodh angainflbn t cin/bitsh'e /10603/137137/8/08 capter O3 df> accessed 15
April 2022
7 Murtaza Hussain Khan v Mohammad Ali Khan (1916) 18 BOMLR 884
8 Sarkar & Santosh Kumar (n 6)
9 Sir Dinshaw Fardunji Mulla, Principles of Mahomedan Law (19th edition, Lexis Nexis 2017) 37

728
 JUS CORPUS LAW JOURNAL, VOL. 2, ISSUE 3, MARCH - MAY 2022

NEARER AND REMOTE HEIR: A heir nearer in blood relation excludes the remote heir.

Since there is a difference in the classification of heirs, the two schools have divergent views in

this respect.

SUCCESSION TO A MURDERED DECEASED: Any person who causes the death of the

deceased, either intentionally or by accident, is not entitled to succession. Any act of the heir
which is formidable by the law and leads to the death of the other person, forfeitures his right

of inheritance to the latter.10

POSITION OF AN ILLEGITIMATE CHILD: An illegitimate child does not have a right to

claim any share in the putative father's property. The child may have inheritance rights

between the mother and her associates.

ESCHEAT: A case where the person may die without leaving any sharer or residuary leaves

the property with the state. The State has the right to inherit such property.

APOSTASY: A person who converts from Islam to any other religion (apostate) cannot claim

any right over the deceased's property under pure Islamic law. However, in India, Section 311
of the Caste Disabilities Removal Act, 1850, allows such a person to take over the share.12

HANAFI LAW

In India, the majority of the Muslims are Hanafis, which was founded by the great Imam Abu

Hanifa. Under, the Hanafi Law of inheritance, the customary laws, and the Islamic laws are

blended in such a way that customary heirs are not deprived of their partake, rather a portion
of the share is distributed among the Quranic Heirs. The male agnates are still preferred, the

only difference is that the rights of female agnates are recognized.

Any law of succession deals with two broad questions:

> Who are the heirs of the deceased?

10 Sarkar & Santosh Kumar (n 6)

11 Caste Disabilities Removal Act, 1850, s 3
12 Ibid

729
 SHANIA: MUSLIM LAW OF INHERITANCE: HANAFI SCHOOL

> To what share the heirs are entitled?

Under the Hanafi School, the heirs are classified into seven categories- 3 Primary and 4

Subsidiary classes 13 :

PRIMARY CLASSES 14

" Quranic heirs dhawul-furud(Sharers)

" Agnatic heirsasabat(Residuaries)

" Uterine Heirs dhawul-arham (Distant Kindred)

SUBSIDIARY CLASSES 15

" The Successor by contract

" The Acknowledged kinsman
" The Sole Legatee

" The State, by Escheat

The first step after paying the funeral expenses, debts, and legacies of the deceased, is to divide
the share among the sharers. The next step includes the distribution of the leftover share

between the residuary. In case there are no sharers, the whole of the property goes to the

residuary. Further, the distant kindred gets a share only if there are no sharers or residuary.
The rights of inheritance go to the subsidiary classes if no heirs belong to the primary classes. 16

A Successor by contract is an heir who entered into a contract with the deceased in
contemplation of payment in lieu of any interest or fine. An acknowledged kinsman is any
person of unknown descendant whom the deceased acknowledged to be a kinsman. In the
absence of the three primary classes and the above two subsidiary classes mentioned, the

13 Asaf Ali Asghar Fyzee (n 5) 397

14 Ibid, 388
15 Ibid
16 Sarkar & Santosh Kumar (n 6)

730
 JUS CORPUS LAW JOURNAL, VOL. 2, ISSUE 3, MARCH - MAY 2022

inheritance goes to the Universal Legatee. The property is escheated to the government in a

case where the above two classes are absent and the deceased has not prepared any will.1 7

QURANIC HEIRS

These are the heirs whose share of inheritance has been specified by the Quran. There are 12

Quranic heirs.

HUSBAND: A surviving husband inherits the property of her wife after her death. He inherits

14 of her estate, and 12 if there is child or child of son how low soever.

WIFE: A living wife gets 14 of her deceased husband's property in a case where there is no

child. She is entitled to 1/8 of the property in case the husband has left any child. In the case of

more than one wife, the share is to be divided equally amongst them. Husband and wife are
never excluded from inheriting the share but inherit together with the nearest heir by

consanguinity, the husband taking 14 in case there is a lineal descendant or 12 in case there is
no such descendant, and the wife taking 1/8 if there is a lineal descendant or 14 if there is no

such descendant. 18

FATHER: A father inherits 1/6 of the estate in case the deceased has left any child or son's or

grandson's child.

MOTHER: A mother is entitled to 1/6 of the share when there is a child or son's child how

low soever, or brothers or sisters who may be consanguine or uterine. She receives 1/3 of the

share in case there is no child or brothers or sisters, or when there is a husband/ wife and the

father present as a sharer.

MATERNAL GRANDMOTHER: The maternal grandmother receives 1/6 of the share when

the mother of the deceased is absent.

17 Asaf Ali Asghar Fyzee (n 5) 320

18 Sir Dinshaw Fardunji Mulla (n 9) 112

731
 SHANIA: MUSLIM LAW OF INHERITANCE: HANAFI SCHOOL

PATERNAL GRANDMOTHER: The paternal grandmother is entitled to 1/6 of the share only

if the father and the mother of the deceased are absent.

PATERNAL GRANDFATHER: The paternal grandfather or the great grandfather is entitled

to 1/6 of the share only if the father of the deceased is absent. The maternal grandfather is not

a Quranic sharer.

DAUGHTERS: The daughter of the deceased is a Quranic heir only in the case of the absence

of any son. She is entitled to 12 of the share, and in case there are two or more daughters, they

are entitled to a share of 2/3, which they divide equally among themselves.

SON'S DAUGHTER: The daughter of a pre-deceased son will be a Quranic heir, in case the

child of the deceased is absent. She is entitled to 12 of the share, and 2/3 of the share goes to

two or more granddaughters which are divided equally among them.

FULL SISTERS: A single full sister is entitled to 12 of the share when the deceased has no child

or son's or grandson's child, father, or grandfather. 2/3 share goes to two or more full sisters

which they divide equally among themselves.

CONSANGUINE SISTERS: She receives 12 share when there is no full sister and excluder.

She gets 1/6 of the share if there is one full sister and no share if there is one or more than one

full sister.

UTERINE SISTER OR UTERINE BROTHER: One uterine sister or brother gets 1/6 share

provided the deceased does not have any child or son's child how low soever, or there is no
father or grandfather. If there are two or more such brothers or sisters, they collectively inherit

2/3 sand divide equally. 19

AGNATIC HEIRS

Agnatic heirs are associated with the deceased through males. The residue left after allotting

the share to Quranic heirs is distributed among the agnatic heirs. In a case where a deceased

19 Sarkar & Santosh Kumar (n 6)

732
 JUS CORPUS LAW JOURNAL, VOL. 2, ISSUE 3, MARCH - MAY 2022

has no Quranic heirs, the estate goes to the agnatic heirs or residuary. There are three types of

residuary.20

" Residuary in their own rights (all-male residuary)

" Residuary in right of another

" Residuary with others

Descendants have an upper hand in succession over ascendants. Further, the ascendants are
preferred over collaterals. Therefore, based on the order of succession, these can be classified

as-

21
AGNATIC DESCENDANTS

SON: He takes double the portion of a daughter's share. In case the deceased has no daughter,
he takes the entire residue.

SON'S SON HOW LOW SOEVER: Nearer relations exclude the remoter ones. In case a son's
daughter is present, he gets double of her portion.

AGNATIC ASCENDANTS 2 2

FATHER: He inherits the entire estate as a residuary.

TRUE GRANDFATHER: He takes the entire estate as a residuary.

AGNATIC COLLATERALS 23

* COLLATERALS DESCENDANTS OF FATHER

FULL BROTHER: He inherits the entire residue in the absence of her sister. However, when a

full sister is present, he takes double the partake.

20 Asaf Ali Asghar Fyzee (n 5) 73-77

21 Ibid, 137-138
22 Ibid, 138
23 Ibid, 138-140

733
 SHANIA: MUSLIM LAW OF INHERITANCE: HANAFI SCHOOL

FULL SISTER: When there is an absence of full brother or the aforementioned residuary, she

takes the residue, if any, if there are any daughters, or son's daughters, or daughters how low

soever.

CONSANGUINE BROTHER: He inherits a double portion in the case of a consanguine sister.

CONSANGUINE SISTER: When the deceased has no full brother or aforementioned

residuary, the entire residue goes to her, if any, if there is a daughter or a daughter how low

soever or a son's daughter.

FULL BROTHER'S SON'S SON: In the case of default of the above residuary, he takes the
entire residue.

CONSANGUINE BROTHER'S SON: He takes the entire residue in the absence of the above
residuary.

FULL BROTHER'S SON'S SON: He takes the entire residue in case the deceased had none of
the above-mentioned residuary.

CONSANGUINE BROTHER'S SON'S SON: He takes the whole residue in case of the absence
of the above regularizes.

* COLLATERALS DESCENDANTS OF TRUE GRANDFATHER

Full paternal uncles, consanguine paternal uncles, consanguine paternal uncle's son, full

paternal uncle's son's son, consanguine paternal uncle's son, and consanguine paternal uncle's

son's son receive entire residue in case of default.

Quranic Residuaries are certain Quranic heirs who become Residuary under certain
circumstances. Though Quranic Heirs are Class 1 heirs, and Residuaries are Class 2 heirs, both

are given their shares. A person cannot inherit the share as long as the other person through

which he is related to decease is alive. Husband, wife, child, father, and mother are primary

heirs, who are always entitled to the share.

734
 JUS CORPUS LAW JOURNAL, VOL. 2, ISSUE 3, MARCH - MAY 2022

UTERINE HEIRS

When there are no sharers or residuary, the share is entitled to the uterine heirs or distant

kindred. These are the blood relatives of the deceased who do not have any place among the
Class 1 or Class 2 heirs. Female Agnates and Cognates are two classes of distant kindred
which have been designated as "uterine relations" 24 by Ameer Ali, and "uterine heirs" 25 by
Fyzee.

These are classified into four categories according to the order of succession:26

" Descendants of the deceased

" Ascendants of the deceased
" Descendants of parents
" Descendants of immediate grandparents (true or false)

Under Muslim law, inheritance is allotted in parts of fractions. However, when the fraction of

the part allotted is either less or more than unity, the partake of the heir is reduced or

increased accordingly. The process through which the shares are decreased is called the

Doctrine of increase (Aul); whereas the process through which the share is increased is known

as the Doctrine of Return (Radd).

DOCTRINE OF 'AUL' OR INCREASE

When the arithmetic sum of functional shares allotted to the heir exceeds unity, then the share

of each sharer is reduced by making the denominator of the fraction common, and then

increasing the denominator in order to make it equal to the sum of numerators. 27

ILLUSTRATION

The husband gets 12 share and two full sisters get 2/3 share.

24 Ameer Ali, II, 57

25
Asaf Ali Asghar Fyzee (n 5) 420
26 Sarkar & Santosh Kumar (n 6)
27 Sree Kumar (n 1)

735
 SHANIA: MUSLIM LAW OF INHERITANCE: HANAFI SCHOOL

The total share is 7/6 which exceeds unity.

First of all, make a common denominator. In this case, the common denominator is 6.

Then the denominator is increased to make it equal to the sum of numerators.

3/6 + 4/7 changes to 3/7 +4/7 which gives unity.

Since the shares are divided proportionately, the husband will get 3/7 shares and the sisters
will get 4/7 shares collectively.

DOCTRINE OF 'RADD' OR RETURN

If the arithmetic sum of the shares allotted is less than unity, and there is no residuary to claim

the share, then the residue reverts back to the sharers in the same proportion of shares. The

husband and wife are not permitted to 'Return' in the case of the presence of an heir. 2 8

29
ILLUSTRATION

The mother gets 1/6 share and the daughter gets 1/2 share.

The total share is 2/3 which is less than unity.

Step 1 includes making the denominator common. In this case, the common denominator is 6.

Step 2 includes decreasing the denominator and making it equal to the numerator.

1/6 + 3/6 becomes 14 + 34 which becomes unity.

Since the shares are divided proportionally, the mother will get 14 share and the daughter will

get 34 share.

28 Sree Kumar (n 1)
29 Asaf Ali Asghar Fyzee (n 5) 81-82

736
 JUS CORPUS LAW JOURNAL, VOL. 2, ISSUE 3, MARCH - MAY 2022

CONCLUSION

Under Muslim Law, the property can be inherited only after the death of the ancestor. The

Sunni Law of succession fuses the Customary Laws of Succession with the amendments

introduced by the Quran, to form a new set of rules altogether. This distinguishes the Sunni

Law of Succession from the Shia Law of succession based on differences in interpretation of

the superimposition of the two principles. Hanafi Law of inheritance classifies the heirs into

three major categories in the order of succession namely, the Quranic Heirs, the Agnates or the

Residuaries, and the Uterine Heirs. It also introduces four other classes put under the category

of subsidiary class. The rules regarding the share of each heir have been laid down clearly

under the law. In case of the default of the above-mentioned heirs, the estate is inherited by the

state. Consequentially, the Doctrine of 'Aul' or the Doctrine of 'Radd' may be applied in cases
where the arithmetic sum of the fractional shares exceeds or recede unity, respectively.

737